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Z.J.Z.M. gegen Schweiz
Entscheid über die Zulassung no. 33499/96, 07 juin 2001


Application no. 33499/96
by J.Z. and M.Z.
against Switzerland
The European Court of Human Rights, sitting on 7 June 2001 as a Chamber composed of
    Mr    G. Ress, President,
    Mr    A. Pastor Ridruejo,
    Mr    L. Wildhaber,
    Mr    L. Caflisch,
    Mr    J. Makarczyk,
    Mr    V. Butkevych,
    Mr    J. Hedigan, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 9 October 1996 and registered on 21 October 1996,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants are Swiss citizens born in 1950 and 1957, respectively. The first applicant lives in Siebnen, the second in Lachen in Switzerland. Both applicants are represented by Mr P. Züger, a lawyer practising in Lachen.
A.  The circumstances of the case
The facts of the case, as submitted by the parties may be summarised as follows.
In 1994 the applicants announced their intention to construct a subterranean garage in Lachen. The neighbours complained, arguing that certain prescribed boundary distances between the real properties involved had not been observed. Their objection was dismissed by the March District Court (Bezirksgericht) on 19 July 1994. The Court awarded the applicants, as defendants, 8,000 Swiss francs (CHF) for procedural expenses (Prozessentschädigung), as the plaintiffs, their neighbours, could themselves have verified that the distances in question had been respected. The court costs of CHF 1,149.20 were imposed on the plaintiffs.
The neighbours filed an appeal (Berufung) which the Cantonal Court (Kantonsgericht) of the Canton of Schwyz dismissed on 4 July 1995. In the operative part of its decision, the court took formal note of the applicants' commitment that no changes would be made within fifty centimetres from the border separating the real properties. The court also ordered the applicants to pay the plaintiffs CHF 4,000 as procedural expenses for the first instance proceedings and CHF 4,000 for the appeal court proceedings, and imposed on the applicants the first-instance court costs as well as appeal court costs amounting to CHF 3,450.50 CHF. The court found that the applicants' plans had been incomplete and even incorrect and the terms employed had been vague, thus prompting the plaintiffs to uphold their objection. The uncertainty brought about by the applicants' conduct contrary to good faith had actually provoked the procedures before the two instances.
On 9 October 1995 the applicants filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht), complaining, first, about the imposition of costs, which in their view was disproportionate as the Cantonal Court had dismissed the plaintiffs' claims. There had been no obligation to submit plans, and neither the first nor the second instance had considered it necessary to ask for further plans. It was unclear to what extent the terms used had been imprecise, and indeed, the objections raised by the plaintiffs had a priori been completely unfounded. On the whole it appeared disproportionate that, for a matter of a value of CHF 10,000, the applicants were now asked to pay CHF 12,000 for completely unnecessary proceedings. Second, the applicants complained that the Cantonal Court had in its judgment incorrectly taken formal note of their commitment which in fact had not been requested by the parties in the proceedings.
The Federal Court transmitted the applicants' public law appeal for observations to both the Cantonal Court and the plaintiffs. The Cantonal Court sent its reply together with the case-file to the Federal Court on 16 November 1995. In its submissions it explained why the applicants' plans had been vague and that precise early information would have been necessary. The court continued that it was "quite typical for the (applicants') mentality" (geradezu typisch für die Mentalität) that they had submitted sketches of plans only after objections had been filed, since they knew that there were tensions with their neighbours and that the latter would object. Other remarks of the applicants were misplaced (deplaziert). The Cantonal Court furthermore found that it had been competent to formulate conditions in its judgment, in particular as to changes in the border area between the properties.
The plaintiffs sent their observations on 4 December 1995, requesting the Federal Court to dismiss the applicants' public law appeal.
The Federal Court transmitted the various observations to the applicants' lawyer who, on 11 December 1995, replied:
"In the above-mentioned case I thank you for serving the observations. I should like to ask you to let me have the case-file for consultation (which in the cantonal proceedings could not be fully undertaken, as the case-file presented by the Cantonal Court was incomplete).
In its written "reply" (of 7 pages), the lower court adds to its decision numerous new grounds as well as amendments to its reasoning. They are hardly objective and aim at twisting the facts in a manner not to be expected from a court. Pursuant to S. 4 § 1 of the Swiss Federal Constitution and Article 6 § 1 of the Convention, the applicants request to be able to comment on the "reply"."
By letter of 13 December 1995 the Federal Court replied:
"You are objecting against inadmissible statements in the observations of the Cantonal Court and you request transmittal of the case-file.
At the present stage of the proceedings, the parties can no longer exercise any rights. Therefore, and as we need the case-file for our decision, we cannot comply with your request for consultation. Inadmissible statements of the Cantonal Court will be disregarded ex officio."
On 7 February 1996 the Federal Court dismissed the applicants' public law appeal, the decision being served on 9 April 1996. The Court declared inadmissible as being insufficiently substantiated and, hence, inadmissible the complaint that the Cantonal Court had incorrectly taken formal note of the applicants' commitment that they would not make changes within 50 centimetres from the border line separating the two properties. In respect of the complaints about the imposition of costs, the Federal Court noted that the applicants, by expressing the wish to construct the garage, had in fact unintentionally obliged their neighbours to institute proceedings and to defend their property rights, compliance with which had at the outset not sufficiently transpired from the plans. The Cantonal Court was entitled to combine the dismissal of the neighbours' objection with a clause that no changes could be made in the border area between the properties. On the whole, a person wishing to construct became responsible for provoking litigation if he did not from the beginning establish clearly that other persons' rights would not be affected.
B.  Relevant domestic law
Section 93 of the Federal Judiciary Act (Organisationsgesetz) envisages the following procedure after a public law appeal has been filed:
"Exchange of Statements
1.    If the court decides to exchange statements, it transmits the appeal to both the authority from which the contested decision or act emanated and to the opposing party as well as any other persons involved. They are given an adequate time-limit to submit the case-file and to file their replies.
2.    If the reasons for the decision transpire only from the authority's observations, the appellant may be granted a time-limit to complement his appeal statement.
3.    Only exceptionally will there be a further exchange of statements."
1. The applicants complain under Article 6 § 1 of the Convention that in the proceedings before the Federal Court they could not consult the case-file or reply to the statements of the Cantonal Court, which numbered seven pages and was fully considered by the Federal Court, and to those of the opposing party, which numbered five pages. These statements, according to them, contained detailed, new and partly insulting explanations. After the applicants had filed their request on 11 December 1995, four months elapsed until the decision was served, so that there would have been sufficient time for the Federal Court to part with the case-file for a few days. It is unclear, finally, why the applicants should arbitrarily have to pay costs for proceedings capriciously instituted by the opposing party.
2. Under Article 13 of the Convention the applicants complain that they did not have an effective remedy at their disposal to raise these complaints in the domestic proceedings and that the public law appeal itself was an ineffective remedy.


1. The applicants complain under Article 6 § 1 of the Convention that in the proceedings before the Federal Court they could not reply to the statements of the Cantonal Court or to those of the opposing party, and that they were not able to consult the case-file.
Article 6 § 1 states, insofar as relevant:
"In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] tribunal..."
a) The Government submit that the applicants have not exhausted domestic remedies as required by Article 35 § 1 of the Convention. While they did request the opportunity to comment on the observations of the Cantonal Court, they failed to file such a request in respect of the observations of the opposing party.
In the applicants' submissions, no issue arises as to the exhaustion of domestic remedies since the Federal Court should of its own motion have provided the opportunity to comment on submissions.
According to Article 35 § 1, "the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law". In the present case, and even assuming that an issue arises under Article 35 § 1, the Court notes that the Federal Court, in its letter of 13 December 1995, informed the applicants that "at the present stage of the proceedings, the parties [could] no longer exercise any rights". In this situation, it follows that any further request of the applicants would have lacked prospects of success.
This part of the application cannot therefore be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention.
b) The Government further contend that Article 6 § 1 of the Convention is inapplicable in the present case, which concerns costs and expenses arising from other proceedings. Reference is made in particular to the Report of the European Commission of Human Rights in the case of Robins v. the United Kingdom (Report of 4 July 1996, Reports of Judgments and Decisions 1997-V, pp. 1814-1816), where it was found that decisions on procedural costs were a subsidiary issue to the merits of a case and did not involve a determination of "civil rights and obligations" within the meaning of Article 6 § 1. While the Court itself did not adhere to this view in its subsequent judgment, that case differed from the present one in that there was a clear link in that case between the substance of the proceedings, concerning their length, and the costs.
Even assuming that Article 6 § 1 was applicable, the Government submit that it did not breach the principle of the equality of arms if the applicants were unable to reply to the observations filed by the Cantonal Court, since that court was not the opposing party in these proceedings. Moreover, both the observations of the lower court and of the opposing party were transmitted to the applicants which, in the Government's opinion, is the major difference to the situation in the Nideröst-Huber v. Switzerland case, where that applicant was not at all informed of the observations (see judgment of 18 February 1997, Reports 1997-I, p. 101 et seq.). A further difference lay in the fact that in that case the Federal Court was confronted with the substance of the case, whereas the present case concerned only costs and expenses.
The Government also point out that in the present case the Federal Court's jurisdiction was limited to examining whether the decision of the lower court was arbitrary, and that the applicants could not have raised any new submissions as to the facts or the law before that court. A right to reply was furthermore unnecessary since the statements of the lower court could not influence the Federal Court's decision, which would rely exclusively on the contested decision of the lower court. Indeed, in its letter of 13 December 1995, the Federal Court assured the applicants that it would disregard inadmissible statements, and it kept its promise: in its judgment of 7 February 1996, it did not rely on any new arguments to which the applicants had not been able to reply. In any event, national courts are entitled, in the interests of the good administration of justice, to regulate the exchange of observations, and in every procedure the moment will come where observations, regardless from which party, can no longer contribute any new elements to the debate.
Finally, insofar as the applicants complain that they were not shown the case-file before the Federal Court, the Government recall, on the one hand, that the applicants had the possibility of consulting the case-file at the Federal Court itself. On the other hand, the Government list all the documents which were in the possession of the applicants and submit that the applicants have not made clear which further document they wished to consult.
The applicants reply that Article 6 § 1 of the Convention is applicable to the present proceedings. When the main dispute in issue involved civil rights, it was not easy to understand why the high costs and expenses should be excluded from the scope of the Convention guarantees by splitting the case into the different rights involved. Moreover, the Federal Court's express refusal to admit observations in reply to the tendentious and largely incorrect statements by the lower court constituted a clear violation of the principle of the equality of arms. The lower court was able to pronounce itself twice: in its judgment, and later in its observations to the Federal Court. The applicants were only allowed one set of submissions. As such, there was no real difference between the present case and that of Nideröst-Huber v. Switzerland (see the judgment cited above). In the applicants' submissions, the powers of examination of the Federal Court were irrelevant here.
The applicants point out that the observations which they wished to submit in reply to the Federal Court would have served mainly to refute new and, in particular, biased - indeed insulting - statements by the lower court. In addition, the Federal Court did not even keep its promise not to take these statements into account, in fact it even expressly adopted them in part. Granting the right to reply would not have unnecessarily prolonged the proceedings before the Federal Court.
Finally, the applicants point out that there was no proof that the list of documents referred to by the Government was complete. When dealing with the Federal Court, lawyers were always allowed to consult files by having them sent to them, and it was quite unusual for files to be consulted at the seat of the court itself.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
2. The applicants also complain under Article 13 of the Convention that they did not have an effective remedy at their disposal to raise these complaints in the domestic proceedings. However, having regard to its decision under Article 6 of the Convention, the Court is not required to examine the case under Article 13 as its requirements are less strict than, and are here absorbed by, those of Article 6 (see the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 23 § 67). It follows that the remainder of the application is, therefore, manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.


For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicants' complaints under Article 6 § 1 of the Convention that in the proceedings before the Federal Court they could not reply to the statements of the lower court and of the opposing party, and that they were not able to consult the case-file;
Declares inadmissible the remainder of the application.
  Vincent Berger   Registrar
  Georg Ress   President


decisione CorteEDU intera