18900/91

 AS TO THE ADMISSIBILITY OF Application No. 18900/91 by Josef MÜLLER 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 23 September 1991 by Josef Müller against Switzerland and registered on 4 October 1991 under file No. 18900/91; 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 1924, is a businessman residing in Zurich. I. In its edition of 28/29 November 1987 the Neue Zürcher Zeitung, a Zurich newspaper, published an article with the title: "Closure of a café in Wollishofen on account of a dispute about heating. The provisional end of a petty war of several years" ("Schliessung eines Cafés in Wollishofen wegen Heizungs-streits. Das vorläufige Ende eines jahrelangen Kleinkrieges"). The article referred to a dispute between a restaurant which rented premises from the applicant and the applicant; the latter eventually turned off the heating, forcing the restaurant to close. The article referred inter alia to a six months' prison sentence imposed on the applicant in June 1986 by the Zurich District Court, the Court of Appeal having reduced the sentence to three months "in April of this year". On 7 December 1987 the applicant requested the judge in summary proceedings of the District of Zurich (Einzelrichter im summarischen Verfahren des Bezirks Zürich) to order the newspaper to publish a text rectifying various statements in the newspaper article and stating his own point of view (Gegendarstellung) on the matter. This request was based on Sections 28 et seq. of the Swiss Civil Code (Zivilgesetzbuch). These provisions concern the protection of the right to respect for the personality (Schutz der Persönlichkeit) and grant inter alia the right, in case of a breach of the right to respect for the personality and if certain conditions are met, to request the judge to have the corrections or the judgment published. After conducting a hearing, the judge dismissed the request on 18 December 1987. The applicant's appeal was dismissed by the Court of Appeal (Obergericht) of the Canton of Zurich on 18 February 1988. II. On 11 March 1988 the applicant filed a plea of nullity (Nichtigkeitsbeschwerde) with the Zurich Court of Cassation (Kassationsgericht). He also challenged various Court of Cassation judges on the grounds that they had participated in previous proceedings in which he had been involved, and he requested a new ad hoc bench of judges. On 23 March 1988 the President of the Court of Cassation decided to transfer the applicant's challenge to the Parliament (Kantonsrat) of the Canton of Zurich for a decision as the Court of Cassation no longer had the required five judges to decide on the applicant's challenge. The President also extended the time-limit for the applicant to substantiate his plea of nullity; he ruled that any further procedural decisions would only be taken after the Zurich Parliament had decided on the applicant's challenge. On 30 August 1988 the applicant filed a public law appeal with the Federal Court (Bundesgericht), complaining of the length of the proceedings (Rechtsverzögerungsbeschwerde) before the Court of Cassation. The public law appeal was transmitted to the newspaper and to the Court of Cassation for comment. On 27 October 1988 the Federal Court dismissed the appeal, noting in particular that the Court of Cassation had had to suspend the proceedings as the case-file had been transmitted to the Zurich Parliament for a decision on the applicant's challenge. Meanwhile, on 8 July 1988 the Bureau of the Parliament of the Canton of Zurich dismissed the applicant's challenge, the decision being served on the applicant on 21 September 1988. Proceedings were then resumed before the Court of Cassation. On 5 May 1989, the Court ordered the applicant to pay advance court costs of 2,500 SFr. The applicant filed an appeal against this decision which the Court of Cassation dismissed on 25 July 1989. The applicant then filed a public law appeal with the Federal Court, whereupon the Court of Cassation on 12 October 1989 decided to suspend the proceedings in order to await the outcome of the proceedings before the Federal Court. On 19 April 1990 the Federal Court dismissed the applicant's public law appeal. On 3 May 1990 the applicant paid the required advance court costs. On 16 October 1990 the Court of Cassation dismissed his plea of nullity. III. The applicant filed an appeal (Berufung) against this decision with the Federal Court. Therein he also challenged 23 Federal Judges and requested the Federal Court to decide on the merits of his case. On 6 May 1991 the Federal Court dismissed his challenge. On 4 June 1991 the Court dismissed his appeal. In its decision of 14 pages the Court examined the applicant's various requests for the publication of his own, opposing point of view, though it considered that the requests were unfounded. Insofar as the applicant complained that the newspaper article referred to his conviction, although the latter had not yet become final, the Federal Court noted the decisions of the previous courts according to which the applicant had in principle been entitled to have his own point of view published. The Federal Court found that the statement prepared by the applicant had contained other incorrect elements which the courts had not themselves been in a position to change. Thus, the whole text would have had to be drafted again. COMPLAINTS The applicant complains under Article 6 para. 1 of the Convention of the length of the proceedings. Under Article 6 para. 1 of the Convention the applicant also complains of the bias of the Federal Judges who summarily rejected his challenge. He further complains that the Federal Court did not conduct an oral hearing on the matter. The applicant complains under Article 6 para. 2 of the Convention of a breach of the presumption of innocence in that the newspaper article stated that he had been sentenced to three months' imprisonment although that conviction had not yet become final. Under Article 13 of the Convention he complains that he did not have an effective remedy at his disposal as the courts concerned could not fully examine the facts and complaints of the case. THE LAW 1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the length of the proceedings. The Commission notes that the proceedings at issue concerned the applicant's request to order a newspaper to publish a text with his own point of view. This request was based on Sections 28 et seq. of the Swiss Civil Code concerning the protection of the personality and granting the applicant, if certain conditions were met, a right to have the correct point of view published. The proceedings at issue thus concerned "the determination of (the applicant's) civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The period to be examined under Article 6 para. 1 (Art. 6-1) commenced on 7 December 1987 when the applicant requested the judge in summary proceedings of the District of Zurich to order the newspaper to publish such a text. The period ended on 4 June 1991 when the Federal Court dismissed his appeal. The period to be considered thus lasted three years, five months and twenty-eight days. The Commission must examine whether the length of these proceedings was "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1). It considers that particular diligence is required in proceedings such as in the present case aimed at rectifying allegedly incorrect statements in a newspaper, where publication of a correction after many years would hardly serve any useful purpose. The reasonableness of the length of proceedings has to be assessed according to the particular circumstances of each case, having regard, in particular, to the complexity of the case, the conduct of the applicant and of the competent authorities, and to what is at stake for the former. In the present case, which concerns civil proceedings, account must also be taken of whether the applicant has shown due diligence by taking the necessary steps to expedite the proceedings and whether delays occurred for which the applicant cannot be held responsible (see Josef Müller AG v. Switzerland, Comm. Report 14.10.1991, para. 75, to be published in D.R.). The Commission has applied these criteria to the present case. It considers at the outset that the proceedings, which concerned the applicant's request to order the newspaper to publish his own, opposing point of view, could not be regarded as complex. As regards the conduct of the applicant, the Commission considers that no issue arises as to the length of the proceedings leading up to the decision of the Zurich Court of Appeal on 18 February 1988, or after the decision of the Zurich Court of Cassation of 16 October 1990. Rather, the issue in the present case concerns the applicant's conduct between these two dates, i.e. a period of two years and approximately eight months when the case was pending before the Court of Cassation. The Commission notes that when filing his plea of nullity of 11 March 1988 the applicant also challenged various Court of Cassation judges. As that Court no longer had a sufficient number of judges to decide on his challenge, the latter was referred to the Parliament of the Canton of Zurich which dismissed it on 8 July 1988. The applicant also filed a public law appeal which the Federal Court dismissed on 27 October 1988. On 5 May 1989 the Court of Cassation imposed advance court costs on the applicant. The applicant's objection against this decision was dismissed by the Court of Cassation on 25 July 1989, his public law appeal by the Federal Court on 19 April 1990. The applicant then paid the advance court costs on 3 May 1990, whereupon on 16 October 1990 the Court of Cassation dismissed his plea of nullity. In the Commission's opinion, the applicant himself thus contributed to a large extent to the length of the proceedings before the Court of Cassation, in particular by challenging a large number of judges, by contesting the court costs, and by filing two public law appeals with the Federal Court. The applicant was therefore himself mainly responsible for the delays in the proceedings which are therefore not attributable to the authorities concerned. This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. Under Article 6 para. 1 (Art. 6-1) of the Convention the applicant complains that before the Federal Court he did not have an oral hearing. The Commission notes that in the proceedings at issue a hearing was conducted before the judge of the Zurich District. While it is true that no hearing was conducted before the Zurich Court of Appeal, the applicant has not shown that in this respect he has exhausted domestic remedies within the meaning of Article 26 (Art. 26) of the Convention by filing a public law appeal and obtaining a decision of the Federal Court on this matter. The applicant has moreover not shown that he filed a request before the Federal Court requesting an oral hearing. An issue arises therefore whether the applicant has waived his right under Article 6 para. 1 (Art. 6-1) of the Convention. The Commission need nevertheless not resolve this issue. It notes in particular that the proceedings at issue concerned mainly the correctness of a newspaper article; the applicant has not demonstrated that the Federal Court could not determine the issues without a direct assessment of the evidence given by the applicant and the opposing party. This part of the application is therefore also manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3. Under Article 6 para. 2 (Art. 6-2) of the Convention the applicant further complains of a breach of the presumption of innocence in that the newspaper was permitted to state that he had been sentenced to three months' imprisonment, although that conviction had not yet become final. The Commission observes that the applicant does not dispute the correctness of the statement of the newspaper article. Moreover, it is not a violation of Article 6 para. 2 (Art. 6-2) of the Convention if a newspaper article merely reports that a particular court has sentenced a person to a prison sentence but does not refer to possible pending appeals which that person may subsequently have filed against the sentence. The Commission also notes that the article expressly referred to the "provisional end" of the dispute. In any event, the Commission notes the Federal Court's decision of 4 June 1991 on this issue. The Court found that the applicant had in principle been entitled to have his own point of view published. However, the statement prepared by him had also contained other incorrect elements. This part of the application is therefore also manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 4. The applicant finally complains under Article 6 para. 1 (Art. 6-1) of the bias of the Federal Judges who summarily rejected his challenge directed against 23 Federal Judges. Under Article 13 (Art. 13) of the Convention he complains that he did not have an effective remedy at his disposal. The Commission has examined these complaints as they have been submitted by him. However, it does not find that they 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 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)