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You are here: BAILII >> Databases >> European Court of Human Rights >> Niderost-Huber v Switzerland - 18990/91 [1997] ECHR 3 (18 February 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/3.html Cite as: (1998) 25 EHRR 709, [1997] ECHR 3, 25 EHRR 709, [1998] 25 EHRR 709

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In the case of Nideröst-Huber v. Switzerland (1),

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court B (2), as a Chamber composed of

the following judges:

Mr R. Bernhardt, President,

Mr Thór Vilhjálmsson,

Mr R. Macdonald,

Mr C. Russo,

Mr J. De Meyer,

Mr N. Valticos,

Mr R. Pekkanen,

Mr L. Wildhaber,

Mr K. Jungwiert,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 28 September 1996 and

27 January 1997,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 104/1995/610/698. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules of Court B, which came into force on 2 October 1994, apply

to all cases concerning the States bound by Protocol No. 9 (P9).

________________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 8 December 1995 and by the

Swiss Government ("the Government") on 20 February 1996, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 18990/91) against the Swiss Confederation lodged with the

Commission under Article 25 (art. 25) by a Swiss national,

Mr Armin Nideröst-Huber, on 17 October 1991.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Switzerland

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46); the Government's application referred to Articles 45, 47 and

48 (art. 45, art. 47, art. 48). The object of the request and of the

application was to obtain a decision as to whether the facts of the

case disclosed a breach by the respondent State of its obligations

under Article 6 para. 1 of the Convention (art. 6-1).

2. In response to the enquiry made in accordance with Rule 35

para. 3 (d) of Rules of Court B, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would

represent him (Rule 31).

3. The Chamber to be constituted included ex officio

Mr L. Wildhaber, the elected judge of Swiss nationality (Article 43 of

the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President of

the Court (Rule 21 para. 4 (b)). On 21 February 1996, in the presence

of the Registrar, the President of the Court, Mr R. Ryssdal, drew by

lot the names of the other seven members, namely Mr Thór Vilhjálmsson,

Mr R. Macdonald, Mr C. Russo, Mr J. De Meyer, Mr N. Valticos,

Mr R. Pekkanen and Mr K. Jungwiert (Article 43 in fine of the

Convention and Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

acting through the Registrar, consulted the Agent of the Government,

the applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 39 para. 1 and 40). Pursuant

to the order made in consequence, the Registrar received the

Government's memorial on 26 July 1996 and the applicant's memorial on

29 July. On 7 August 1996 the Commission produced various documents

requested by the Registrar on the instructions of the President of the

Chamber.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

24 September 1996. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr P. Boillat, Head of the European Law

and International Affairs Section,

Federal Office of Justice, Agent,

Mr A. von Kessel, European Law

and International Affairs Section,

Federal Office of Justice,

Mr J.-M. Piguet, Service for the Revision of

the Federal Judicature Act,

Federal Office of Justice, Advisers;

(b) for the Commission

Mr N. Bratza, Delegate;

(c) for the applicant

Mr M. Ziegler, Rechtsanwalt (lawyer)

practising in Lachen, Counsel,

Ms H. Marty, Rechtsanwaltin (lawyer)

practising in Lachen, Adviser.

The Court heard addresses by Mr Bratza, Mr Ziegler and

Mr Boillat.

AS TO THE FACTS

I. Circumstances of the case

6. Mr Armin Nideröst-Huber is a Swiss citizen born in 1940 and

resident in Rickenbach (Switzerland).

7. On 9 December 1985 he was dismissed without notice from the

posts of chairman (Verwaltungsratspräsident) and managing director

(Geschäftsführer) of a family-run public limited company

(Aktiengesellschaft) incorporated under Swiss law, following a change

of majority among the shareholders.

8. On 29 July 1986 he brought proceedings against the company

seeking arrears of salary and a severance payment

(Abgangsentschädigung). The Schwyz District Court (Bezirksgericht)

gave judgment against him on 22 September 1988.

9. On 19 June 1990 the Schwyz Cantonal Court (Kantonsgericht)

dismissed an appeal (Berufung) by the applicant. Endorsing the reasons

of the lower court, it held that the applicant's dismissal had been

justified because in the conflict between Mr Nideröst-Huber and the

minority shareholders he had neglected the interests of the company in

favour of his own. As a result, the new majority no longer trusted him

to manage the company honestly.

10. The applicant then applied to the Federal Court by means of

an appeal (Berufung) lodged with the Cantonal Court on 12 October 1990.

The Cantonal Court transmitted the appeal to the Federal Court on

22 October together with the case file and one page of observations

(Stellungnahme zur Berufung), which were not communicated to the

applicant. In these observations it argued that the appeal should be

dismissed and refuted some of the grounds of appeal, emphasising,

inter alia, that Mr Nideröst-Huber's dismissal had been the legitimate

consequence of his intractable and unlawful conduct over a number of

years at the head of the firm.

11. The company submitted a defence (Berufungsantwort) on

12 December 1990. This was communicated to Mr Nideröst-Huber.

12. On 1 March 1991 the Federal Court dismissed the appeal,

holding that the Cantonal Court had rightly ruled that the applicant's

dismissal without notice was justified, since he had abused his

majority shareholding in the company in order to serve his

personal interests, systematically disregarding those of the

minority shareholders, even in breach of binding judicial decisions;

the new majority had therefore been justified in dismissing him

forthwith.

13. The judgment was served on the applicant on 30 April 1991.

On the same day he asked the Federal Court to supply him with a copy

of the Cantonal Court's observations (see paragraph 10 above). He

obtained this on 2 May 1991.

II. Relevant domestic law

14. Section 56 of the Federal Judicature Act of 16 December 1943

provides:

"The cantonal authority shall immediately inform the

respondent of the grounds of appeal, even if the appeal

appears to be out of time, and shall transmit to the

Federal Court, within one week, the documents whereby the

appeal has been lodged, a copy of the final decision and the

preliminary decisions which have preceded it, the complete

file and, where appropriate, its own observations. It shall

also inform the Federal Court of the date on which the

impugned decision was notified, the date on which the appeal

reached it or on which it was posted and the date on which it

was communicated to the respondent."

PROCEEDINGS BEFORE THE COMMISSION

15. In his application to the Commission of 17 October 1991

(no. 18990/91) Mr Nideröst-Huber complained that, contrary to Article 6

para. 1 of the Convention (art. 6-1), he had not received a copy of the

observations sent by the Schwyz Cantonal Court to the Federal Court and

had therefore been deprived of the opportunity to comment on them

before the Federal Court gave judgment.

16. The Commission declared the application admissible on

17 January 1995. In its report of 23 October 1995 (Article 31)

(art. 31), it expressed the opinion by twenty-six votes to four that

there had been a violation of Article 6 para. 1 (art. 6-1). The full

text of the Commission's opinion and of the two dissenting opinions

contained in the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and Decisions 1997-I),

but a copy of the Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

17. In their memorial the Government requested the Court "to hold

that Switzerland has not violated the European Convention on

Human Rights in respect of the matters which gave rise to

Mr Nideröst-Huber's application".

18. The applicant asked the Court "to hold that there has been a

violation of Article 6 para. 1 of the Convention (art. 6-1)".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION

(art. 6-1)

19. Mr Nideröst-Huber alleged a violation of Article 6 para. 1 of

the Convention (art. 6-1), which provides:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair ... hearing ... by [a]

... tribunal ..."

He submitted that, in spite of an express request, the

Federal Court had not sent him the observations of the

Schwyz Cantonal Court before it gave judgment, and had thus made it

completely impossible for him to inspect them and, if need be, to

comment on them in due course. It had been all the more needful for

these observations to be sent to him, however, because they expanded

on the impugned judgment and because the Federal Court had evidently

reproduced certain passages from them in its judgment. In short, the

principle of equality of arms and the right to a fair trial had been

infringed.

20. The Government maintained that the observations in question

contained nothing which had not already been said explicitly and in

greater detail in the Cantonal Court's judgment of 19 June 1990. If

they had included important new arguments which the Federal Court

wished to take into consideration, it would have had to organise a

further exchange of pleadings or order a hearing for oral argument, but

it had not done so.

The sole purpose of the possibility provided for in

section 56 of the Federal Judicature Act (see paragraph 14 above) was

to save time in Federal Court proceedings by enabling the

cantonal courts to defend their judgments against criticisms that had

been made of them. Under no circumstances could the cantonal courts

take advantage of this as an opportunity to expand on their decisions.

In the present case the fact that the observations were not

sent to Mr Nideröst-Huber had not affected the outcome in any way,

since the respondent company had not received a copy either. Even if

copies had been sent, this could only have been for information

purposes, since the content of the observations did not call for any

response from the parties, who had already had every opportunity to

present their cases - the applicant when he lodged the appeal and the

company when it submitted a defence.

In short, when considered in the light of the proceedings as

a whole, the fact that the applicant was not sent a copy of the

observations had not detrimentally affected his position in any way.

21. The Commission found no infringement of the principle of

equality of arms. On the other hand, it took the view that the failure

to send the applicant a copy of the observations and the fact that it

had been impossible for him to comment on them in due course had

infringed the right to a fair trial for the purposes of Article 6

para. 1 (art. 6-1).

22. The Court considers, firstly, that in itself the filing of

observations like those in the present case is not incompatible with

the requirements of a fair trial, even though it is a practice seldom

encountered in the member States of the Council of Europe. In the

present case only the fact that the observations were not communicated

to the applicant raised any problem.

23. The principle of equality of arms - one of the elements of the

broader concept of fair trial - requires each party to be given a

reasonable opportunity to present his case under conditions that do not

place him at a substantial disadvantage vis-à-vis his opponent

(see, among other authorities, the Ankerl v. Switzerland judgment of

23 October 1996, Reports of Judgments and Decisions 1996-V,pp. 1567-68,

para. 38).

In the present case the Cantonal Court's observations were not

communicated to either of the parties to the dispute before the

Federal Court, namely the applicant and the respondent company. As for

the Cantonal Court, which is an independent tribunal, it cannot be

regarded as the opponent of either of the parties. Accordingly, no

infringement of equality of arms has been established.

24. However, the concept of fair trial also implies in principle

the right for the parties to a trial to have knowledge of and comment

on all evidence adduced or observations filed (see the Lobo Machado

v. Portugal and Vermeulen v. Belgium judgments of 20 February 1996, (1997) 23 EHRR 79,

Reports 1996-I, p. 206, para. 31, and p. 234, para. 33, respectively).

25. The Government argued that this rule applied to cases where,

as in the above-mentioned Lobo Machado and Vermeulen cases and the case

of Bulut v. Austria, (1997) 24 EHRR 84, (judgment of 22 February 1996, Reports 1996-II),

an authority had taken the initiative of submitting arguments or

observations intended to advise or influence a court. But in the

present case the Cantonal Court had merely replied to the criticisms

of its judgment that had been made in the appeal. In doing so it had

not made any points which were not already part of the impugned

decision.

26. The Court notes that even though the observations in issue ran

to only one page they nevertheless constituted a reasoned opinion on

the merits of the appeal, and explicitly called for it to be dismissed.

As the Delegate of the Commission observed, they were therefore

manifestly aimed at influencing the Federal Court's decision.

27. In that connection, the effect they actually had on the

decision is of little consequence. In any event, as the observations

came from an independent tribunal which, furthermore, had a thorough

knowledge of the file, having previously considered the merits of the

case, it is unlikely that the Federal Court would have paid them no

heed. It was therefore all the more needful to give the applicant an

opportunity to comment on them if he wished to do so.

28. It is also of little consequence that the case concerned

civil litigation, where the national authorities, as the Government

rightly pointed out, enjoy greater latitude than in the criminal sphere

(see the Dombo Beheer B.V. v. the Netherlands, (1994) 18 EHRR 213, judgment of

27 October 1993 , Series A no. 274, p. 19, para. 32, and the

Levages Prestations Services v. France, (1997) 24 EHRR 351, judgment of 23 October 1996,

Reports 1996-V, p. 1544, para. 46). According to the above-mentioned

Lobo Machado and Vermeulen judgments, on this point the requirements

derived from the right to adversarial proceedings are the same in both

civil and criminal cases (p. 206, para. 31, and p. 234, para. 33,

respectively).

29. Nor is the position altered when, in the opinion of the courts

concerned, the observations do not present any fact or argument which

has not already appeared in the impugned decision. Only the parties

to a dispute may properly decide whether this is the case; it is for

them to say whether or not a document calls for their comments. What

is particularly at stake here is litigants' confidence in the workings

of justice, which is based on, inter alia, the knowledge that they have

had the opportunity to express their views on every document in the

file.

30. No doubt the filing of observations like those in issue in the

present case is calculated to save time and expedite the proceedings.

As its case-law bears out, the Court attaches great importance to that

objective, which does not, however, justify disregarding such a

fundamental principle as the right to adversarial proceedings. In

fact, Article 6 para. 1 (art. 6-1) is intended above all to secure the

interests of the parties and those of the proper administration of

justice (see, mutatis mutandis, the Acquaviva v. France judgment of

21 November 1995, Series A no. 333-A, p. 17, para. 66).

31. In the present case respect for the right to a fair trial,

guaranteed by Article 6 para. 1 of the Convention (art. 6-1), required

that Mr Nideröst-Huber be informed that the Cantonal Court had sent

observations and that he be given the opportunity to comment on them.

Moreover, according to the Government's explanations at the

hearing before the Court, that is indeed the normal practice of the

Federal Court. It was not followed in this case.

32. There has accordingly been a breach of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

33. Under Article 50 of the Convention (art. 50),

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Damage

34. In respect of pecuniary damage Mr Nideröst-Huber claimed

8,500 Swiss francs (CHF) in compensation for the damages

(Entschädigung) of CHF 5,000 which the Federal Court had ordered him

to pay the respondent plus CHF 3,500 in interest. He further claimed

CHF 3,000 for non-pecuniary damage.

35. The Government asked the Court to refuse these claims, arguing

that it was not for the Court to retry the case in the place of the

Swiss authorities.

36. The Delegate of the Commission referred to the Court's

decisions on this issue in the above-mentioned Lobo Machado and

Vermeulen cases.

37. The Court notes that there is no causal connection between the

violation complained of and the pecuniary damage alleged; it cannot

speculate as to what the outcome of the case would have been if the

proceedings had been compatible with the requirements of Article 6

para. 1 (art. 6-1).

As for non-pecuniary damage, the Court considers that it is

sufficiently compensated for by the finding of a breach of Article 6

para. 1 (art. 6-1).

B. Costs and expenses

38. Mr Nideröst-Huber also requested CHF 18,500 in respect of the

costs and expenses he had incurred through the proceedings in the

Federal Court (CHF 7,725) and later before the Convention institutions

(CHF 10,775).

39. The Delegate of the Commission referred to the above-mentioned

Vermeulen and Bulut judgments.

40. The Court observes that, according to its case-law, to be

awarded costs and expenses the injured party must have incurred them

in order to seek prevention or rectification of a violation of the

Convention, to have the same established by the Commission and later

by the Court and to obtain redress therefor. It must also be shown

that the costs were actually and necessarily incurred and that they are

reasonable as to quantum (see, among other authorities, the Philis

v. Greece (no. 1), (1991) 13 EHRR 741, judgment of 27 August 1991, Series A no. 209, p. 25,

para. 74).

It notes that the costs relating to the proceedings in the

Federal Court could not have been incurred in order to prevent or

rectify a violation affecting the proceedings in that very court. It

accordingly accepts the Government's submission that it should refuse

this part of the claim.

With regard to the costs incurred for Mr Nideröst-Huber's

representation in Strasbourg, the Court awards the sum claimed, namely

CHF 10,775.

C. Default interest

41. According to the information available to the Court, the

statutory rate of interest applicable in Switzerland at the date of

adoption of the present judgment is 5% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a breach of Article 6 para. 1 of

the Convention (art. 6-1);

2. Holds that the present judgment constitutes sufficient just

satisfaction in respect of any non-pecuniary damage suffered;

3. Holds

(a) that the respondent State is to pay the applicant, within

three months, 10,775 (ten thousand seven hundred and

seventy-five) Swiss francs for costs and expenses;

(b) that simple interest at an annual rate of 5% shall be

payable from the expiry of the above-mentioned three months

until settlement;

4. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 18 February 1997.

Signed: Rudolf BERNHARDT

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the concurring

opinion of Mr De Meyer is annexed to this judgment.

Initialled: R.B.

Initialled: H.P.

CONCURRING OPINION OF JUDGE DE MEYER

(Translation)

In this case it would have been sufficient to note that the

right to a fair trial necessarily (and not just "in principle")

implies, for the parties to a trial, the right to "have knowledge of

and comment on all evidence adduced or observations filed" (1), and

that this right had therefore been manifestly infringed, in that no

copy of the observations sent to the Federal Court by the

Cantonal Court had been supplied to Mr Nideröst-Huber (2).

_______________

1. See paragraph 24 of the judgment.

2. See paragraph 10 of the judgment.

_______________

We did not have to spend time replying to the unconvincing

arguments by which it was sought to justify what happened in this case.

In the expatiatory remarks which we felt obliged to make in

reply to these arguments we were thus led to say some things that it

would have been better for us not to have said.

Firstly, it is not at all certain that in this area

Contracting States enjoy "greater latitude" in civil cases "than in the

criminal sphere" (3). The fact that this assertion has been made, and

- be it said - without sufficient justification, in earlier judgments

is no reason to repeat it yet again here.

_______________

3. See paragraph 28 of the judgment.

_______________

Moreover, it was completely unnecessary to concede that "the

filing of observations like those in issue in the present case is

calculated to save time and expedite the proceedings" (4). We had

already shown sufficient (and perhaps too much) understanding by

accepting that, "in itself", it was "not incompatible with the

requirements of a fair trial" (5).

_______________

4. See paragraph 30 of the judgment.

5. See paragraph 22 of the judgment.