20572/92

 AS TO THE ADMISSIBILITY OF Application No. 20572/92 by P. S. against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 12 October 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 21 May 1992 by P. S. against Switzerland and registered on 2 September 1992 under file No. 20572/92; Having regard to : - reports provided for in Rule 47 of the Rules of Procedure of the Commission; - the observations submitted by the respondent Government on 4 May 1994 and the observations in reply submitted by the applicant on 4 July 1994; Having deliberated; Decides as follows: THE FACTS The applicant, born in 1931, is a Swiss citizen residing at Rothenthurm in Switzerland. a. Particular circumstances of the case I. The applicant was involved in execution proceedings on account of debts arising from mortgage bonds. He contested the execution by introducing an action (Aberkennungsklage) with the Horgen District Court (Bezirksgericht). In his submissions he threatened to kill three judges involved in other proceedings if his action was not accepted. In a letter addressed to the president of the governing board (Verwaltungsratspräsident) of a bank the applicant further threatened to kill four judges if he did not duly receive an answer to his letter. In view thereof, the Zurich Court of Appeal (Obergericht) on 23 August 1991 convicted the applicant in appeal proceedings of repeated attempted compulsion (wiederholte versuchte Nötigung) and sentenced him unconditionally to three months' imprisonment. The applicant filed a plea of nullity which the Zürich Court of Cassation (Kassationsgericht) on 25 January 1992 declared inadmissible as the applicant could file a plea of nullity with the Federal Court. II. Against the decision of the Court of Cassation the applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht), alleging in particular that his statements did not amount to compulsion. Previously, the applicant had also filed a plea of nullity (Nichtigkeitsbeschwerde) with the Federal Court against the judgment of the Zurich Court of Appeal, though the plea of nullity remained suspended until the Zurich Court of Cassation would give its decision. On 20 February 1992 the President of the Court of Cassation (Kassationshof) of the Federal Court ordered the applicant to pay advance court costs of 2,000 SFr for the public law appeal and of 2,000 SFr for the plea of nullity. The order stated that non-payment within the time-limit would result in the inadmissibility of the remedies. The applicant did not pay the court costs. On 3 March 1992 the applicant wrote to the President of the Court of Cassation of the Federal Court, stating that the latter was not competent to impose court costs in respect of the public law appeal. On 26 March 1992 the Court of Cassation of the Federal Court rejected the applicant's public law appeal and plea of nullity as the applicant had not paid the advance court costs. The first page of the decision stated as the subject matter "Criminal Proceedings; assessment of evidence; repeated attempted compulsion" ("Strafverfahren; Beweiswürdigung; wiederholte versuchte Nötigung"). b. Relevant domestic law Before the Federal Court (Bundesgericht), a public law appeal (staatsrechtliche Beschwerde) serves to complain about the violation of constitutional rights, inter alia procedural rights (see Section 84 para. 1 of the Federal Judiciary Act). A plea of nullity (Nichtigkeitsbeschwerde) serves to complain about a breach of Federal law (see Section 269 para. 1 of the Federal Code on Criminal Procedure). According to Section 150 of the Federal Judiciary Act whoever files an application with the Federal Court shall upon the President's order provide a security for the probable court costs. If there are special reasons the Court may waive the security partly or in its entirety. If the time limit for providing the security expires without payment, the application will not be dealt with. COMPLAINTS 1. In his application before the Commission the applicant complains under Article 6 of the Convention that the Federal Court imposed advance court costs of 2,000 SFr on him in respect of his public law appeal. He claims that Section 150 of the Federal Judiciary Act is unlawful and that he has a right to apply to that Court irrespective of his financial situation. In his reply to the observations of the Government (see below, PROCEEDINGS BEFORE THE COMMISSION) he also complains of the imposition of court costs in respect of his plea of nullity to the Federal Court. 2. The applicant also complains of a breach of his right to a fair trial under Article 6 of the Convention in that the Federal Court on the first page of its decision of 26 March 1992 stated that the case concerned the "assessment of evidence" although he, the applicant, had not complained about the assessment of evidence. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 21 May 1992 and registered on 2 September 1992. On 2 March 1994 the Commission decided to communicate the complaint about the fines imposed on the applicant. The Government submitted their observations on 4 May 1994 and the applicant his observations in reply on 4 July 1994. THE LAW 1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Federal Court imposed advance court costs of 2,000 SFr on him in respect of his public law appeal. Article 6 para. 1 (Art. 6-1) states, insofar as relevant: "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by (a) tribunal established by law." The Government submit that Article 6 (Art. 6) of the Convention is not applicable to the proceedings at issue which related to the applicant's public law appeal before the Federal Court. Before the Commission he did not complain about the imposition of costs in respect of his plea of nullity. The public law appeal was only concerned with the decision of the Zurich Court of Cassation of 25 January 1992 which declared his plea of nullity inadmissible. The Government further submit that the applicant has not complied with the requirement as to the exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention in that before the Federal Court he did not request exemption from the court costs. Finally, the Government submit that the imposition of court costs in the present case was called for in the interests of the good administration of justice. The applicant submits that Article 6 (Art. 6) of the Convention is applicable and has been violated in the present case. He complains in particular of the imposition of court costs in respect of both his public law appeal and his plea of nullity before the Federal Court. He submits that his public law appeal was filed against the Zurich Court of Appeal. The Federal Court was not competent to impose advance court costs. At that time the applicant had no money as his house had just been auctioned at a loss; moreover, he was unemployed and did not receive any unemployment benefits. The applicant claims that he has directly felt the consequences of the decision of the Federal Court in that thereafter he had to serve his prison sentence. a) The Commission notes that in his original application before the Commission the applicant complained of the imposition of advance court costs in respect of the public law appeal which he had filed before the Federal Court. According to these submissions the applicant's public law appeal was directed against the decision of the Zurich Court of Cassation of 25 January 1992. In its decision of 25 January 1992 the Zurich Court of Cassation declared the applicant's plea of nullity inadmissible as he could have filed a plea of nullity with the Federal Court. The public law appeal proceedings before the Federal Court thus concerned the issue of the admissibility of the applicant's plea of nullity before the Zurich Court of Cassation. However, a decision as to whether or not a plea of nullity is admissible does not involve "the determination of ... any criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. This part of the application is therefore incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. b) As regards the applicant's complaint of imposition of court costs in respect of his plea of nullity to the Federal Court, the Commission notes that this complaint was raised in the applicant's observations of 4 July 1994, whereas the Federal Court's judgment was given on 26 March 1992. The applicant has not therefore lodged this complaint within the six months time-limit provided for in Article 26 (Art. 26) of the Convention. It follows that this complaint is inadmissible according to Article 27 para. 3 (Art. 27-3) of the Convention. 2. The applicant also complains under Article 6 (Art. 6) of the Convention that the Federal Court in its decision of 26 March 1992 incorrectly stated that the case concerned the "assessment of evidence". The Commission notes that in this decision the Federal Court declared the applicant's public law appeal and plea of nullity inadmissible as he had not paid the court costs. As Article 6 (Art. 6) of the Convention does not apply to proceedings relating to the admissibility of appeals, this part of the application is also incompatible ratione materiae with the Convention 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 Acting President of the Second Chamber Second Chamber (K. ROGGE) (H. DANELIUS)