61316/00
Hilpert Martin gegen Schweiz
Nichtzulassungsentscheid no. 61316/00, 29 novembre 2001
The European Court of Human Rights (Third Section), sitting on 29 November 2001 as a Chamber composed of
Mr G.Ress, President,
Mr I. Cabral Barreto,
Mr L. Wildhaber,
Mr L. Caflisch,
Mr R. Türmen,
Mr B. Zupancic,
Mr K.Traja, judges,
and Mr V.Berger, Section Registrar,
Having regard to the above application lodged on 22 June 2000 and registered on 29 September 2000,
Having deliberated, decides as follows:
THE FACTS The applicant, a German citizen, resides in Berlin.
A. The circumstances of the case
In 1999, the applicant filed an action with the Basel-Stadt Civil Court(Zivilgericht) against his former lawyer, claiming damages of 140,000 Swiss francs (CHF) for negligent representation. Subsequently, he filed a request for legal aid.
On 28 February 2000, the Civil Court dismissed the applicant's request for legal aid as he had not demonstrated his indigence and, after a summary examination of the case, as the action lacked prospects of success.
Against this decision the applicant filed a complaint(Beschwerde) with Court of Appeal (Appellationsgericht) of the Canton of Basel-Stadt which the latter declared inadmissible on 28 March 2000. In its decision the court stated, inter alia :
" whereas according to Section 243 of the Code of Civil Procedure (hereafter: CCP) a complaint must be filed within 10 days after the contested decision was rendered ...
whereas the contested decision was served on the applicant's representative on 29 February 2000; the period for filing the complaint therefore began on 1 March 2000 and ended on 10 March 2000;
whereas according to S. 34a § 1 CCP the time-limit will be complied with if the complaint was filed with the court, or transmitted to the Swiss postal service, at the latest on the last day;
whereas if a person abroad files a complaint, it will suffice if the complaint is filed with a Swiss diplomatic or consular representation abroad, though it is insufficient if the submission is merely transmitted to the foreign postal service ... ;
whereas the applicant transmitted his complaint to the German postal service in Berlin on 10 March 2000, i.e., on the last day of the time-limit, and that the complaint arrived only on 14 March 2000 in the area of the Swiss postal service, and was received by the Civil Court on the same day;
whereas the complaint was, therefore, filed only after the expiry of the time-limit for which reason it cannot be admitted on account of the delay ..."
The applicant filed a public law appeal(staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht) in which he complained, inter alia, that it was customary (üblich) to accept the German postal service as the recipient for such submissions, and that as he was a German, it was not possible for him to send them to the Swiss embassy in Germany.
On 6 June 2000 the Federal Court partly dismissed and partly rejected the applicant's public law appeal. It considered that S. 34a CCP corresponded with S. 12 of the Federal Act on International Private Law(Bundesgesetz über das internationale Privatrecht) according to which it sufficed for persons living abroad to submit their documents on the last day of the time-limit to the Swiss diplomatic or consular representation. The judgment continued:
"In this respect there has been no arbitrary interpretation or application of S. 34a CCP. Finally, insofar as it has been maintained that the Swiss diplomatic or consular representations in Germany would not accept submissions from non-Swiss citizens destined for courts, this is a mere assertion, which has not been substantiated and which need not be dealt with any further ..."
On 27 June 2000, upon the applicant's request, the Swiss embassy in Berlin wrote a letter to the applicant as follows:
"Many thanks for your letters of 22 and 24 June 2000.
I can herewith confirm that - based on internal instructions - submissions to cantonal courts may not be transmitted by diplomatic bag(Kurier) via a Swiss foreign representation.
Furthermore, I must inform you that mail may not be deposited at the embassy which, as you claim in your letter of 22 June 2000, the opposing party has suggested."
B. Relevant domestic law and practice
S. 34a of the Code of Civil Procedure of the Canton of Basel-Stadt provides, inter alia, that a time-limit shall be complied with if the submission concerned is transmitted, on the last day of the time-limit, to the Swiss postal service, or, if the person is abroad, if it is submitted on this day to a Swiss diplomatic or consular representation. S. 243 provides, inter alia, that a complaint against a decision must be filed in writing within 10 days after the decision was rendered.
S. 12 of the Federal Act on International Private Law states that, in order for a person abroad to comply with a time-limit before Swiss authorities, it suffices if the submission arrives on the last day of the time-limit at a Swiss diplomatic or consular representation.
COMPLAINTS The applicant complains under Article 6 § 1 of the Convention that his complaint to the Court of Appeal, duly posted with the German postal service, was refused by the Swiss courts. He draws attention to the letter of the Swiss embassy in Berlin, dated 27 June 2000, according to which submissions to cantonal courts may not be transmitted by diplomatic bag via a Swiss foreign representation. He also complains of unfairness. The applicant also relies on Articles 13 and 14 of the Convention.
THE LAW
Article 6 § 1 of the Convention 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 Court notes that the applicant filed an action with the Basel-Stadt Civil Court against his former lawyer, claiming compensation. However, he subsequently also filed a request for legal aid. When this was refused by the Basel-Stadt Civil Court, the applicant filed a further complaint - in respect of which a dispute arose - over whether he had complied with the required time-limits.
Thus, rather than concerning the original action, the proceedings of which the applicant now complains related to his request for legal aid, and in particular to non-compliance with a time-limit. In the Court's opinion, therefore, the proceedings at issue did not serve to "determine" the applicant's "civil rights and obligations" within the meaning of Article 6 § 1 of the Convention (see application no. 21775/93, decision of 25 May 1995, DR 81-B, p. 48).
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected, in accordance with Article 35 § 4.
b) Even assuming that Article 6 of the Convention was applicable to the proceedings at issue, the Court considers that the applicant is in fact complaining of lack of access to court in that his complaint to the Court of Appeal of the Canton of Basel-Stadt was not admitted. In the Court's opinion, however, the relevant statutory regulations all made it clear that the time-limit for filing such a complaint would not be complied with if it was transmitted on the last day of the time-limit to a foreign postal service.
According to the Court's case-law, the right of access to court is by its nature subject to limitations, and these statutory regulations did not reduce the right of access to court to the applicant in such a way or to such an extent that the very essence of his right was impaired (see the Philis v. Greece judgment of 27 August 1991, Series A no. 209, pp. 20-21, § 59).
In the present case, the applicant was not prevented from transmitting his complaint via a foreign postal service. However, if he chose to do so, he should have assured the due receipt of his complaint in Switzerland by an early posting abroad (see Rodriguez Valin v. Spain, no. 47792/99, § 28, ECHR 2001 -).
It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.
c) It is true that the applicant also argues that it would have been useless to transmit his complaint via a Swiss foreign representation. Before the Court he submits in particular a letter of the Swiss embassy in Berlin, dated 27 June 2000, i.e. after the final judgment of the Federal Court of 6 June 2000, according to which that embassy would not have transmitted the applicant's submissions via diplomatic bag to the Court of Appeal of the Canton of Basel-Stadt.
The Court notes that the applicant raised this argument in his public law appeal before the Federal Court, though the latter in its judgment of 6 June 2000 refused to deal with it as it had not been substantiated. In the Court's opinion, the applicant failed sufficiently to confirm his allegations before the Federal Court by obtaining, and adducing before that court, before 6 June 2000, a document, such as the subsequent letter of 27 June 2000 of the Swiss embassy in Berlin submitted to this Court. However, according to the Court's case-law, there is no exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention where a domestic remedy is not admitted because of a procedural mistake (see the Ankerl v. Switzerland judgment of 23 October 1996, Reports of Judgments and Decisions, 1996-V, p. 1565, § 34).
It follows that in this respect the applicant has also not complied with the requirement under Article 35 § 1 of the Convention as to the exhaustion of domestic remedies, and this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Georg Ress
Registrar President