18789/91

 AS TO THE ADMISSIBILITY OF Application No. 18789/91 by T.P. against Switzerland The European Commission of Human Rights (First Chamber) sitting in private on 12 January 1994, the following members being present: MM. A. WEITZEL, President S. TRECHSEL C.L. ROZAKIS F. ERMACORA E. BUSUTTIL A.S. GÖZÜBÜYÜK Mrs. J. LIDDY MM. M.P. PELLONPÄÄ B. MARXER G.B. REFFI B. CONFORTI N. BRATZA I. BÉKÉS E. KONSTANTINOV Mrs. M.F. BUQUICCHIO, 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 12 August 1991 by T.P. against Switzerland and registered on 12 September 1991 under file No. 18789/91; 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 Swiss citizen born in 1949, is a lawyer residing at Wilen in Switzerland. In 1979 the applicant was appointed Secretary to the Department of Justice of the Canton of Obwalden (Departementssekretär), Secretary to the Cantonal Court (Kantonsgericht) of the Canton of Obwalden and, as a position related to the first mentioned office, Deputy to the Bankruptcy Officer (Stellvertreter des Konkursbeamten). On 5 July 1989 the Cantonal Court sentenced the applicant to six months' imprisonment, suspended on probation for two years, and to a fine of 20,000 SFr for having fraudulently obtained a false attestation (Erschleichung einer Falschbeurkundung) and for attempted evasion of the Federal Act on the Acquisition of Real Property by Persons Abroad (Bundesgesetz über den Erwerb von Grundstücken durch Personen im Ausland). The applicant appealed against this decision. On 6 July 1989 the Council of State (Regierungsrat) suspended the applicant, and on 17 October 1989 it dismissed him as from 31 January 1990 from his position as Departmental Secretary. On 31 January 1990 the Administrative Court (Verwaltungsgericht) partly upheld the applicant's appeal and quashed the decision of 17 October 1989. On 1 February 1990 the Council of State appointed a new Departmental Secretary. On 9 February 1990, upon the applicant's appeal against the conviction of 5 July 1989, the Court of Appeal (Obergericht) of the Canton of Obwalden, sentenced him to four months' imprisonment, suspended on probation, and to a fine of 5,000 SFr. Against this decision the applicant lodged a plea of nullity (Kassationsbeschwerde) with the Court of Appeal Commission (Obergerichtskommission). On 20 March 1990 the Council of State formally dismissed the applicant as from 6 July 1989 from his position as Departmental Secretary. The Council of State considered that even an eventual acquittal in the criminal proceedings pending against the applicant could not alter this decision, as already mere doubts concerning the integrity of a civil servant were intolerable. The applicant filed an appeal against this decision with the Administrative Court. On 31 May 1990 the Court of Appeal Commission dismissed the applicant's plea of nullity against the decision of the Court of Appeal of 9 February 1990. Judges N., F. and V. participated in the decision. The decision stated that the Commission could not freely review all questions of fact and law. In its decision of 19 June 1990 the Council of State stated that, as the applicant was no longer Departmental Secretary, the position of Deputy to the Bankruptcy Officer had to be filled, and it appointed V. to the post. V. had participated in the decision of the Court of Appeal Commission of 31 May 1990. Against the decision of 31 May 1990 of the Court of Appeal Commission the applicant lodged a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht), complaining of the bias of judge V. who had had a personal interest in the outcome of the proceedings against the applicant. Thus, V. had already been a candidate for the office of Deputy to the Bankruptcy Officer prior to the decision, or had at least known that his election was possible; the applicant would have remained in office if he had been acquitted. In its observations in reply, the Court of Appeal Commission explained that the office of Deputy to the Bankruptcy Officer was of minor importance, the applicant having in fact only once exercised this function in the past ten years. On 9 November 1990 the Federal Court dismissed the public law appeal, the decision being served on the applicant on 14 February 1991. In its decision the Federal Court noted that the applicant had been dismissed as Departmental Secretary on 20 March 1990. All subordinate duties also came to an end, among them the office of Deputy to the Bankruptcy Officer. Already on 1 February 1990 there had been a new appointment for the office of Departmental Secretary, no reservation having been made that the office would again be open to the applicant in case of his acquittal. Independently of the outcome of the criminal proceedings, the applicant no longer occupied the position of Deputy. Already for this reason there was no appearance, as claimed by the applicant, that judge V. had an interest in the outcome of the proceedings. The Federal Court concluded that judge V. had not sought the office of Deputy and had not known, when participating in the decision of the Court of Appeal Commission, that he would be requested to take it over. COMPLAINTS The applicant complains under Article 6 of the Convention that judge V. was biased in that he profited from the applicant's conviction. Thus, V. must have known before the decision of the Court of Appeal Commission of his eventual appointment to the office of Deputy to the Bankruptcy Officer. The applicant contests that V. had to be persuaded to take over the office, as he also applied for other offices. THE LAW The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that judge V. of the Court of Appeal Commission, who decided on the plea of nullity, profited from the applicant's conviction in that he was appointed to the office previously occupied by the applicant. According to the case law of the Convention organs, the existence of impartiality required by Article 6 para. 1 (Art. 6-1) must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect; even appearances may be of a certain importance (see Eur. Court H.R., Fey judgment of 24 February 1993, Series A no. 255, para. 28). In the present case, the Commission observes that the applicant's office as Deputy to the Bankruptcy Officer was subordinate to his position as Departmental Secretary. Moreover, the Court of Appeal Commission was not called upon to decide on the applicant's guilt. Rather, after the applicant had been tried by both the Cantonal Court and the Court of Appeal, the Court of Appeal Commission decided on his plea of nullity and could no longer freely review questions of fact and law. Judge V. was only one of three judges participating in the decision of 31 May 1990 concerning the applicant. Furthermore, the applicant lost his position as Departmental Secretary long before the Court of Appeal Commission gave its judgment on 31 May 1990. Thus, the applicant's position as Departmental Secretary came to an end on 1 February 1990, when a new Secretary was appointed. On 20 March 1990 the applicant was formally dismissed from this position by the Council of State. In any event, it transpires that there was no relation between the contested decision of the Court of Appeal Commission and the dismissal of the applicant from his various functions. Thus, the Council of State expressly stated on 20 March 1990 that its decision to dismiss the applicant would remain unchanged even if the applicant were eventually to be acquitted in the separate criminal proceedings pending against him. Finally, the Commission notes the conclusions of the Federal Court of 9 November 1990 according to which judge V. had not sought the office at issue and had not known, when participating in the decision, that he would be requested to take it over. The latter event occurred moreover well after the decision of the Court of Appeal Commission. As a result, there are no indications that the impartiality of judge V. appeared open to doubt. It follows that the application 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 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 unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the First Chamber President of the First Chamber (M.F. BUQUICCHIO) (A. WEITZEL)