CASE OF ZIMMERMANN AND STEINER v. SWITZERLAND
(Application no. 8737/79)
13 July 1983
In the case of Zimmermann and Steiner,
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 the Rules of Court*, as a Chamber composed of the following judges:
Mr. G. WIARDA, President,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. D. EVRIGENIS,
Mr. F. MATSCHER,
Mr. J. PINHEIRO FARINHA,
Mr. L.-E. PETTITI,
Mr. R. MACDONALD,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,
Having deliberated in private on 25 January and 20 June 1983,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The present case was referred to the Court by the European Commission of Human Rights ("the Commission") and the Government of the Swiss Confederation ("the Government"). The case originated in an application (no. 8737/79) against that State lodged with the Commission on 30 August 1979 under Article 25 (art. 25) of the Convention by two Swiss nationals, Mr. Werner Zimmermann and Mr. Johann Steiner.
2. The Commission’s request and the Government’s application were lodged with the registry of the Court within the period of three months laid down by Articles 32 § 1 and 47 (art. 32-1, art. 47) - the former on 17 May and the latter on 8 July 1982. The request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Swiss Confederation recognised the compulsory jurisdiction of the Court (Article 46) (art. 46), and the application to Articles 45, 47 and 48 (art. 45, art. 47, art. 48). The object of the request and the application was to obtain a decision as to whether the length of the proceedings relative to the hearing of the applicants’ appeal to the Swiss Federal Court had exceeded the reasonable time stipulated by Article 6 § 1 (art. 6-1) of the Convention.
3. The Chamber of seven judges to be constituted included, as ex officio members, Mrs. D. Bindschedler-Robert, the elected judge of Swiss nationality (Article 43 (art. 43) of the Convention), and Mr. G. Wiarda, the President of the Court (Rule 21 § 3 (b) of the Rules of Court). On 28 May 1982, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. F. Matscher, Mr. J. Pinheiro Farinha, Mr. L.-E. Pettiti, Mr. R. Macdonald and Mr. R. Bernhardt (Article 43 (art. 43) in fine of the Convention and Rule 21 § 4). Subsequently, Mr. Bernhardt was exempted by the President from sitting and was replaced by Mr. D. Evrigenis (Rule 24 § 4).
Mr. Wiarda, who had assumed the office of President of the Chamber (Rule 21 § 5), ascertained, through the Registrar, the views of the Agent of the Government and the Delegate of the Commission regarding the procedure to be followed. On 12 October 1982, he decided, having particular regard to their concurring statements, that it was not necessary for memorials to be filed and that the oral proceedings should open on 24 January 1983.
By Order of 22 December 1982, the President requested the Government and the Commission to supply certain documents; these were received at the registry on various dates.
5. The hearings were held in public at the Human Rights Building, Strasbourg, on 24 January 1983. Immediately before they opened, the Court had held a preparatory meeting; it had authorised the person assisting the Delegate of the Commission to use the German language (Rule 27 § 3).
There appeared before the Court:
- for the Government
Mr. J. VOYAME, Director
of the Federal Office of Justice, Agent,
Mr. P. MÜLLER, Director
of the registry of the Swiss Federal Court,
Mr. O. JACOT-GUILLARMOD, Federal Office of Justice,
Mr. B. MÜNGER, Federal Office of Justice, Counsel;
- for the Commission
Mr. J. SAMPAIO, Delegate,
Mr. L. MINELLI, the applicants’ representative
before the Commission, assisting the Delegate (Rule 29 §
1, second sentence, of the Rules of Court).
The Court heard addresses by Mr. Voyame for the Government and by Mr. Sampaio and Mr. Minelli for the Commission, as well as their replies to its questions.
AS TO THE FACTS
6. Mr. Werner Zimmermann and Mr. Johann Steiner were born in 1937 and 1904 respectively. Mr. Zimmermann is a fitter and resides at Uster (Zürich); Mr. Steiner is retired and resides at Bargen (Berne).
Until 30 September 1976, each of the applicants was the tenant of a flat, Mr. Zimmermann in Kloten and Mr. Steiner in Rümlang; these localities are close to Zürich-Kloten airport, which is in the territory of, and operated by, the Canton of Zürich.
A. Proceedings before the Federal Assessment Commission
7. In 1974, the applicants sought compensation from the Canton of Zürich for the damage caused by the noise and air pollution resulting from the operation of the airport; Mr. Zimmermann claimed a lump sum of 28,242 SF and Mr. Steiner a lump sum of 54,199 SF. Having been unable to arrive at a settlement with them, the Canton applied on 17 June 1974 for assessment proceedings to be opened under section 57 of the Federal Expropriation Act of 20 June 1930. The case was referred to the Federal Assessment Commission having jurisdiction in the matter, namely the Commission for the Tenth District; on this occasion it was presided over by a judge of the St. Gallen Higher Court and also comprised an architect, an engineer and the registrar of that court (sections 59 et seq. of the above-mentioned Act, Order of 24 April 1972 on the Federal Assessment Commissions and Order of 17 May 1972 on the Federal Assessment Districts).
8. The Assessment Commission rejected the applicants’ claims by a decision of 6 October 1976, which was served on them on 7 March 1977. It recognised that under Swiss case-law and legal theory tenants could in principle rely on the law of nuisance (voisinage) set out in the Civil Code (Articles 679 and 684); however, it considered that the applicants were alleging non-pecuniary damage and not damage to property, whereas only the latter fell to be taken into account under the Federal Expropriation Act.
B. Proceedings before the Federal Court
9. On 18 April 1977, Mr. Zimmermann and Mr. Steiner lodged with the Federal Court an administrative-law appeal against the Federal Assessment Commission’s decision (section 77 § 1 of the Federal Expropriation Act). The Federal Court sought the views of the Assessment Commission on 27 April. The latter filed its observations on 18 May 1977 and the administrative authorities of the Canton of Zürich filed theirs on 24 May 1977. This concluded the pleadings (procédure contradictoire).
10. The applicants’ lawyer wrote to the Federal Court on 8 September 1978 to enquire about the state of the proceedings. It replied, on 21 September, that it had not yet been able to deal with the case because of its excessive workload, but hoped to be able to give a decision during the coming months. The Federal Court enclosed with its letter a copy of the observations filed by the Canton of Zürich.
The applicants reverted to the matter on 15 March 1979. In a letter of 23 March, the judge acting as rapporteur of the First Public-Law Chamber of the Federal Court informed them that, save for unforeseen circumstances, a decision would be given before the court vacation.
On 29 June 1980, the applicants’ lawyer again asked the Federal Court for information about the state of the proceedings. On 11 July, the judge acting as rapporteur, whilst expressing his regrets about the delay in examining the case, replied that judgment would be delivered after the court vacation.
Its judgment, which was fifteen pages in length, began by analysing the situation of residential and agricultural tenants in the event of expropriation. It went on to observe that when - in 1967 and 1958 respectively - the applicants signed their leases, which were renewable every three months, they were aware of the nuisance to which they would be subjected; they had not established that it had grown noticeably worse in the meantime (section 41 of the Expropriation Act).
C. The Federal Court’s excessive workload and the measures taken to deal with it
12. According to the statistics supplied by the Government, from 1969 to 1979 the total number of appeals rose from 1,629 to 3,037, that is an increase of 86%. The rate of growth was 107% for public-law appeals (1,336 against 634) and as much as 318% for administrative-law appeals (590 against 141).
As early as 1970, the Federal Assembly decided to increase the number of members of the Federal Court from 26 to 28 and the number of substitute judges from 12 to 15; thereafter the Public-Law and Administrative-Law Chamber had 11 members instead of 9.
In its report for 1971, published on 1 February 1972, the Federal Court drew attention to a build-up in the volume of litigation; it stated that "despite the increase, in 1970, in the number of judges", it would "already have to consider at an early date the measures to be taken to deal with the growth in the quantity of cases".
In November 1973, the Federal Court submitted to the Federal Government a number of urgent proposals designed to reduce this excessive workload; at the same time it suggested that a thorough review be undertaken of the whole organisation of the Federal courts, especially in public- and administrative-law matters, as regards its objectives and its relationship with the administration of the Cantonal courts.
In its message of 22 May 1974 to the Federal Assembly, the Federal Government put forward draft texts designed, on the one hand, to modify the Federal Constitution of the Courts Act as regards the Public-Law and Administrative-Law Chamber of the Federal Court and, on the other hand, to amend the Federal Decree fixing the number of registrars and secretaries; it proposed that the number of judges be increased from 28 to 30 and the number of registrars and secretaries from 24 to 28. In its preliminary observations, the Federal Government stated:
"The cases coming before the Public-Law and Administrative-Law Chamber of the Federal Court constitute a task which, for a long time now, has been growing continuously and threatening to become an excessive workload of a permanent nature; in the long term and having regard to the Court’s present organisation, it will not be possible to keep abreast of this task without there being detrimental effects on the quality of the handling of cases and, at the end of the day, on protection under the law."
However, the Federal Court itself requested that these reforms be deferred, pending a full-scale revision of the Federal Constitution of the Courts Act; this revision has not yet been effected (see paragraph 16 below).
13. In its report for 1977, dated 14 February 1978, the Federal Court recorded that there had been no diminution in the growth of its caseload, above all in the area of public and administrative law. It attributed this not only to the extension of the Confederation’s powers in administrative matters but also to the fact that citizens were having increased resort to the guarantees which the law afforded to them vis-à-vis the public authorities.
On 14 December 1977, the Federal Court had recommended to the Federal Government urgent measures similar to those it had sought in 1973. As a result, in 1978 the Federal Assembly took a first series of decisions. It increased the number of Federal judges from 28 to 30 and, with effect from 1 February 1979, the number of registrars and secretaries from 24 to 28. It also decided to split the Public-Law and Administrative-Law Chamber into two Public-Law Chambers.
The Federal Court, for its part, adopted on 14 December 1978 revised Rules of Procedure which also came into force on 1 February 1979. Public-law and administrative-law cases are now distributed, according to their subject-matter, amongst the different Divisions of the Federal Court.
14. These reforms were to prove insufficient. In its management report for 1979, dated 12 February 1980, the Federal Court recorded that 3,037 cases had been brought and 2,786 disposed of during the year; however, it had been necessary to carry over to 1980 the examination of some 1,565 cases that is more than half of those registered in 1979. The Federal Court observed that the vast majority (84%) of the cases remaining on its list concerned public and administrative law and stated:
"In these areas, if no immediate solution is found, a litigant will in future have to wait for years before the Court rules on his case. In a State governed by the rule of law, such a situation is incompatible with the role that should be played by the Supreme Court."
The Federal Government therefore proposed in their message of 17 September 1980 to the Federal Assembly that the number of registrars and secretaries be increased from 28 to 60. It should be noted that these are not junior administrative staff but highly-qualified lawyers who play an essential role in the functioning of the Federal Court (Rule 10 of the Federal Court’s Rules of Procedure, dated 14 December 1978); indeed they act in a consultative capacity during deliberations (Rule 12, second paragraph).
15. In its management report for 1980, dated 6 February 1981, the Federal Court pointed out that the situation was still serious. It regretted that the two legislative Chambers had not yet been able to adopt the Government’s proposals and added:
"Owing to its overwhelming workload, the Court is now no longer able, in certain areas, to fulfil its role as guardian of the law, even though for its part it is doing everything possible, as regards internal organisation, to keep abreast of its obligations."
On 20 March 1981, the Federal Assembly adopted a Decree raising from 28 to 40 the posts for registrars and secretaries of the Federal Court and also increasing its administrative staff.
These measures led to some improvement: in its report for 1981, dated 12 February 1982, the Federal Court noted that for the first time since 1975 it had succeeded in disposing of almost as many cases (3,164) as had been registered (3,187); however, it had been obliged to adjourn 1,787. It concluded from this that "for some years more it will remain burdened by an excessive workload and will therefore not be able to decide cases within a time which would, having regard to their nature, appear reasonable in terms of the Constitution and the Convention".
16. Quite apart from these decisions intended to cater for the immediate problem, the Federal committee of experts preparing a full-scale revision of the Federal Constitution of the Courts Act of 16 December 1943, designed to reduce the Federal Court’s workload and accelerate its proceedings, completed its work at the end of 1981. Recently, the Federal Office of Justice and Police submitted a preliminary draft text to the Government, with a view to setting in motion a consultation procedure which should be terminated in 1983.
17. The Federal Court has itself taken practical steps aimed at coping with its backlog of pending business. Believing that to process cases in chronological order would give rise to serious injustices, it has, in particular, utilised a system, known as "sorting", based on the degree of urgency and the human implications of each case.
PROCEEDINGS BEFORE THE COMMISSION
18. In their application of 30 August 1979 to the Commission (no. 8737/79), Mr. Zimmermann and Mr. Steiner alleged that the length of the proceedings relative to the hearing of their administrative-law appeal to the Federal Court (18 April 1977 - 15 October 1980) had exceeded the "reasonable time" stipulated by Article 6 § 1 (art. 6-1) of the Convention.
In its report of 9 March 1982 (Article 31 (art. 31) of the Convention), the Commission expressed the unanimous opinion that there had been a violation of Article 6 § 1 (art. 6-1).
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
AS TO THE LAW
I. THE ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)
21. The applicants complained of the length of the proceedings relative to the hearing of their administrative-law appeal to the Federal Court (18 April 1977 - 15 October 1980). They relied on Article 6 § 1 (art. 6-1) of the Convention, which provides as follows:
"In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."
22. A point which was not disputed, and which the Court takes as established, is that the "rights" claimed by Mr. Zimmermann and Mr. Steiner before the Federal Court - being personal or property rights - were private, and therefore "civil" within the meaning of Article 6 § 1 (art. 6-1).
The sole question to be determined in the present case is whether or not the "reasonable time" was exceeded. The Commission considered that it was; the Government disagreed.
23. The applicants complained exclusively of the length of the proceedings before the Federal Court (see paragraph 18 above); it was only in this connection that the Commission, whose decision of 18 March 1981 delimits the compass of the case subsequently referred to the Court (see the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 39, § 106), declared admissible and examined their application. It follows that the earlier proceedings before the Federal Assessment Commission are not in issue here.
The period to be taken into consideration thus runs from 18 April 1977, when Mr. Zimmermann and Mr. Steiner lodged their appeal, to 15 October 1980, when the Federal Court gave judgment (see paragraphs 9 and 11 above), that is nearly three and a half years. For a case dealt with at a single jurisdictional level, such a lapse of time is considerable and calls for close scrutiny under Article 6 § 1 (art. 6-1).
24. The reasonableness of the length of proceedings coming within the scope of Article 6 § 1 (art. 6-1) must be assessed in each case according to the particular circumstances (see the Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, § 49). The Court has to have regard, inter alia, to the complexity of the factual or legal issues raised by the case, to the conduct of the applicants and the competent authorities and to what was at stake for the former; in addition, only delays attributable to the State may justify a finding of a failure to comply with the "reasonable time" requirement (see, mutatis mutandis, the König judgment of 28 June 1978, Series A no. 27, pp. 34-4O, §§ 99, 102-105 and 107-111, and the above-mentioned Buchholz judgment, Series A no. 42, p. 16, § 49).
1. Complexity of the case
25. The Government acknowledged that there was nothing particularly complicated about the case; the Commission was of the same opinion. The Court agrees: no investigation into the facts was required and the legal issues arising do not appear to have been of exceptional difficulty.
2. Conduct of the applicants
26. The delays complained of cannot be attributed to Mr. Zimmermann and Mr. Steiner. Under Swiss law - as the Government admitted - they had no means of expediting matters. Besides, after lodging their appeal on 18 April 1977, they sent to the Federal Court, on 8 September 1978, 15 March 1979 and 29 June 198O, three letters seeking information on the state of the proceedings (see paragraph 10 above).
3. Conduct of the Swiss authorities
27. It was common ground between Government, Commission and applicants that the principal cause of the length of the proceedings was the manner in which the Federal Court carried out its task. After seeking the views of the Federal Assessment Commission on 27 April 1977, it received in May that body’s observations and then those of the Canton of Zürich administrative authorities; subsequently, it did no more than reply to the above-mentioned letters from the applicants (see paragraphs 9 and 10 above). Swiss law (sections 109 and 110 of the Federal Constitution of the Courts Act) empowered the Federal Court to take a decision on the basis of the documents before it; it did not do so until about three and a half years later.
The Government cited the above-mentioned Buchholz judgment of 6 May 1981 (Series A no. 42), for there the Court had not found a violation of Article 6 § 1 (art. 6-1) although almost five years had elapsed before the final domestic decision was rendered. However, in that case the proceedings complained of had passed through three jurisdictional levels and had been characterised throughout by the taking of numerous measures, either to ascertain the facts or for other purposes. In the present case, on the other hand, the Court is faced with a single and lengthy period of total inactivity, which could have been justified only by exceptional circumstances.
28. The Government, supporting their argument with statistical evidence, relied in the main on the Federal Court’s excessive workload (see paragraphs 12 and 14 above). In their view, the backlog of pending business meant that cases had to be sorted according to their urgency and importance (see paragraph 17 above), neither of which criteria militated in favour of a more rapid examination of the appeal by Mr. Zimmermann and Mr. Steiner. In addition, it was maintained that the Swiss Parliament had taken such steps as were necessary to remedy the situation.
The Commission did not overlook the difficulties encountered or the considerable expenditure required to overcome them, but it did not consider that the reasons advanced by the Government constituted an excuse for the length of the proceedings in question.
That was also the applicants’ view; they did not dispute that the Federal Court had an excessive workload or that some system of sorting was justified, but they contended that the moment came when every case was entitled to priority merely on account of the time that had elapsed.
29. The Court would point out in the first place that the Convention places a duty on the Contracting States to organise their legal systems so as to allow the courts to comply with the requirements of Article 6 § 1 (art. 6-1) including that of trial within a "reasonable time". Nonetheless, a temporary backlog of business does not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind (see the above-mentioned Buchholz judgment, Series A no. 42, p. 16, § 51, and the Foti and others judgment of 10 December 1982, Series A no. 56, p. 21, § 61).
Methods which may fall to be considered, as a provisional expedient, admittedly include choosing to deal with cases in a particular order, based not just on the date when they were brought but on their degree of urgency and importance and, in particular, on what is at stake for the persons concerned. However, if a state of affairs of this kind is prolonged and becomes a matter of structural organisation, such methods are no longer sufficient and the State will not be able to postpone further the adoption of effective measures.
3O. The statistics supplied by the Government show that since 1969 there has been a progressive increase in the volume of litigation before the Federal Court, above all in the area of administrative law.
Initially, the Swiss authorities may have thought that it was a matter of a temporary excess of work, but as early as 1973 the situation - which, moreover, finds an equivalent in many other Contracting States - was seen by the Federal Court to be one that depended on questions of structural organisation (see paragraph 12 above).
31. However, although the steps taken during the period ending on 15 October 1980, the date of the Federal Court’s judgment, reflected a genuine willingness to tackle the problem, they did not give sufficient weight to the structural aspect and therefore only produced results that were not very satisfactory. The Federal Court did recommend in 1973 certain urgent measures, but it asked for them to be deferred pending a full-scale revision of the Constitution of the Courts Act (see paragraph 12 above). It renewed its request therefore in December 1977, when the position became more critical; they were adopted by the Federal Assembly in 1978, entered into force on 1 February 1979 and consisted, inter alia, of an increase in the number of judges from 28 to 30 and in the number of registrars and secretaries from 24 to 28. In addition, the Federal Court effected a general revision of its Rules of Procedure (see paragraph 13 above). Nevertheless, these measures could not be regarded as sufficient, even at that time; in fact, the backlog of cases grew progressively worse, the reason being that the volume of litigation continued to increase. The more drastic measures voted on 20 March 1981 - that is, after the appeal by Mr. Zimmermann and Mr. Steiner had been dismissed - will probably prove to be more effective (see paragraphs 11, 14 and 15 above); however, the Court does not have to make any assessment thereof.
32. The proceedings in question lasted for nearly three and a half years, and during most of that period the applicants’ case remained stationary. Having regard to all the circumstances of the case, the Court finds this lapse of time excessive; the difficulties undeniably encountered by the Federal Court could by then no longer be considered to be temporary, nor could they deprive the applicants of their right to a hearing within a "reasonable time" (see the above-mentioned Foti and others judgment, Series A no. 56, p. 23, § 75).
There has therefore been a violation of Article 6 § 1 (art. 6-1). The Court does not have to specify to which national authority this violation is attributable: the sole issue is the international responsibility of the State (see the above-mentioned Foti and others judgment, ibid., p. 21, § 63).
II. THE APPLICATION OF ARTICLE 50 (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."
- the sum of 500 SF for each of his clients as compensation for non-pecuniary damage;
- reimbursement of their lawyer’s fees for the Federal Court proceedings;
- reimbursement of their costs and expenses before the Commission and the Court.
As the Agent of the Government has submitted detailed observations on the matter, the Court considers that the question is ready for decision (Rule 50 § 3, first sentence, of the Rules of Court).
1. Non-pecuniary damage
In the Court’s opinion, assuming that the applicants suffered some degree of prejudice in the form of mental strain, adequate compensation therefore would in this case be furnished by the finding, in the present judgment, that the reasonable time was exceeded (see, mutatis mutandis, the Corigliano judgment of 10 December 1982, Series A no. 57, p. 17, § 53).
2. Costs and expenses
36. To be entitled to an award of costs and expenses under Article 50 (art. 50) the injured party must have incurred them in order to seek, through the domestic legal order, prevention or redress of a violation, to have the same established by the Commission and later by the Court or to obtain reparation therefore. Furthermore, the Court has to be satisfied that the costs and expenses were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, inter alia, the Minelli judgment of 25 March 1983, Series A no. 62, p. 20, § 45).
37. The applicants claimed in the first place 100 SF for lawyer’s fees before the Federal Court; this relates to the two letters written by Mr. Kuhn to enquire about the state of the proceedings (see paragraph 10 above). They are entitled to reimbursement of this sum, since this action was taken with a view to prompting the Federal Court to comply with the requirements of Article 6 § 1 (art. 6-1).
38. As regards the Strasbourg proceedings, the applicants did not have the benefit of free legal aid before the Commission or in their relations with the Commission’s Delegate before the Court. They sought 2,360 SF in respect of the costs and expenses of their representative, Mr. Minelli.
The Court finds that the applicants should be awarded this amount, which was not contested by the Government to be plausible and reasonable.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 § 1 (art. 6-1) of the Convention;
2. Holds that the respondent State is to pay to the applicants two thousand four hundred and sixty Swiss francs (2,460 SF) in respect of costs and expenses;
3. Rejects the remainder of the claim for just satisfaction.
Done in English and in French, the French text being authentic, at the Human Rights Building, Strasbourg, this thirteenth day of July, one thousand nine hundred and eighty-three.
For the Registrar
* Note by the registry: In the version of the Rules applicable when proceedings were instituted. A revised version of the Rules entered into force on 1 January 1983, but only in respect of cases referred to the Court after that date.