18990/91

 AS TO THE ADMISSIBILITY OF Application No. 18990/91 by Armin NIDERÖST-HUBER against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 17 January 1995, the following members being present: Mr. H. DANELIUS, President Mrs. G.H. THUNE MM. G. JÖRUNDSSON S. TRECHSEL J.-C. SOYER H.G. SCHERMERS 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 17 October 1991 by Armin Nideröst-Huber against Switzerland and registered on 24 October 1991 under file No. 18990/91; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having regard to the observations submitted by the respondent Government on 18 February 1994 and the observations in reply submitted by the applicant on 1 June 1994; Having deliberated; Decides as follows: THE FACTS The facts of the case, as they have been submitted by the parties, may be summarised as follows. The applicant is a Swiss national born in 1940 and resides in Rickenbach (Switzerland). Before the Commission he is represented by Mr. M. Ziegler, a lawyer practising in Lachen. A. Particular circumstances of the case In December 1985, following a change in the majority of share holders, the applicant was dismissed without notice from his posts as president of the board of management (Verwaltungsratspräsident) of a limited company incorporated under Swiss law (Aktiengesellschaft) and managing director (Geschäftsführer), respectively. On 29 July 1986 the applicant brought an action for payment of outstanding salary and compensation for dismissal against the company. On 22 September 1988 the Schwyz District Court (Bezirksgericht) dismissed the applicant's action. On 19 June 1990 the Schwyz Cantonal Court (Kantonsgericht) dismissed the applicant's appeal (Berufung). The Court found that the applicant's dismissal without notice was justified as an important reason for the applicant's dismissal existed. In the course of the struggle for power between the applicant, who was supported by a part of the share holders, and the new majority of share holders, the applicant had not distinguished his own interests from those of the company and neglected the company's interests. Thus, the applicant's conduct had destroyed the confidence of the defendant in the applicant's loyal management of the company. On 12 October 1990 the applicant introduced at the Cantonal Court a further appeal (Berufung) to the Federal Court (Bundesgericht). On 22 October 1990 the Cantonal Court transmitted the appeal and the file to the Federal Court and commented on the applicant's appeal. In its comments the Cantonal Court stated inter alia that the basis of confidence had been shattered because of the applicant's refractory behaviour over the years and that the applicant had improperly accused the District Court of bias. The comments of the Cantonal Court were not transmitted to the parties. On 12 December 1990 the defendant submitted observations, which were transmitted to the applicant. On 1 March 1991 the Federal Court dismissed the applicant's appeal. The Federal Court, in a detailed reasoning, found that the Cantonal Court had correctly assumed that the applicant's dismissal without notice was justified. The applicant had, by his refractory behaviour as managing director, continuously ignored the interests of the former minority share holders. The company, with the changed majority of share holders, could not be expected to continue the employment contract and had the right to dismiss him without notice. The Federal Court's judgment was served on the applicant on 30 April 1991. On 2 May 1991 the Federal Court, upon the applicant's request, transmitted to him the Cantonal Court's comments of 22 October 1990. B. Relevant domestic law Section 56 of the Federal Judiciary Act (Bundesrechtspflege- gesetz) reads as follows: (Translation) "The Cantonal authority has to inform the other party immediately of the filing of the appeal, even when it appears to be lodged out of time. Within a week the Cantonal authority has to submit to the Federal Court the writs of appeal, a copy of its decision and of previous procedural decisions as well as the complete file and its possible observations. It has to inform the Federal Court about the date on which the impugned decision was served on the parties, the date at which the appeal was received or posted and when the opposing party was informed." COMPLAINTS The applicant complains under Article 6 para. 1 of the Convention that the principle of equality of arms was violated in the proceedings before the Federal Court, because the Cantonal Court's comments of 22 October 1990 were not served on him. Thus, he had no opportunity to comment on them. He submits that in these observations the Cantonal Court made wrong or at least questionable submissions which the Federal Court took over and to which he could not react. THE LAW The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of a violation of the principle of equality of arms, because he did not receive the Cantonal Court's comments of 22 October 1990 during the proceedings before the Federal Court and, thus, had no opportunity to react to them. Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, reads as follows: "In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ..." The Government submit that no issue arises with regard to the principle of equality of arms as this principle does not concern the relation between a party and the deciding authority. In any event, the fact that the applicant had no possibility to comment on the Cantonal Court's observations did not infringe the principle of fair trial. The Government point to the specific function of the observations under Section 56 of the Federal Judiciary Act in the proceedings before the Federal Court. The scope of such observations is limited as they must not contain any new statement of facts. Their purpose is to allow the Cantonal authority to comment on legal questions invoked for the first time in the appeal, to rectify erroneous or tendentious interpretations of the judgment, to clarify ambiguous passages of the judgment and to comment on complaints about obvious mistakes allegedly made by the court. The Government further submit that the observations of the Cantonal Court were very short and merely summed up its judgment. They only referred to elements already contained in the judgment and neither supplemented the facts nor the legal reasoning. The Federal Court adopted the Cantonal Court's findings on the facts as contained in the judgment, without relying on the Cantonal Court's observations. When the Federal Court described the applicant's conduct with a concise formula used by the Cantonal Court in its observations ("renitent" for systematic opposition) it did not depart from the Cantonal Court's judgment. The Government also argue that civil proceedings should not be aligned to criminal proceedings in an artificial way, as the requirements inherent in the concept of fair trial are stricter with regard to criminal proceedings and Contracting States have a greater latitude when dealing with civil cases. In the context of the civil proceedings the requirements of Article 6 (Art. 6) are met if, like in the present case, the possibility for a second exchange of memorials exists if the Cantonal Court's observations would have contained new and serious arguments. The applicant submits that the principle of equality of arms requires that important legal submissions must be served on the parties in order to allow them to react thereto. The right to make observations does make a Cantonal Court a party to the proceedings before the Federal Court. In making observations such a court makes statements in favour of a party. As such observations emanate from an official body, they are practically more important than the submissions of the opposing party. There is therefore a shift in the equality of arms in favour of the party it supports, which necessitates that the appellant must be able to receive and comment on the observations. The applicant submits further that, in any event, the Federal Court's failure to serve the Cantonal Court's observations on him violated his right to a fair hearing. The observations contained new, and, in his view, incorrect elements which the Federal Court adopted in its judgment. But even if the observations did not relate to new elements, the Cantonal Court's remarks were likely to show him in an unfavourable light before the Federal Court. The Commission finds that the application raises complex issues of fact and law with respect to the applicant's right to a fair hearing under Article 6 para. 1 (Art. 6-1) of the Convention which must be examined on the merits. The application cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established. For these reasons, the Commission, by a majority DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. Secretary to the Second Chamber President of the Second Chamber (K. ROGGE) (H. DANELIUS)