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
Having deliberated in private on 28 September 1996 and
27 January 1997,
Delivers the following judgment, which was adopted on the
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).
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
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
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
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
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
"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
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
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,
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,
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 (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
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 judgment of
27 October 1993, Series A no. 274, p. 19, para. 32, and the
Levages Prestations Services v. France 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,
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
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
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."
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
36. The Delegate of the Commission referred to the Court's
decisions on this issue in the above-mentioned Lobo Machado and
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
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) judgment of 27 August 1991, Series A no. 209, p. 25,
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
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;
(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
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
Signed: Herbert PETZOLD
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.
CONCURRING OPINION OF JUDGE DE MEYER
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.