European Court of Human Rights

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.

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

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

B. Proceedings before the Federal Court

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

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).

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.

"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).

"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".

PROCEEDINGS BEFORE THE COMMISSION

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)

"In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."

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.

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).

1. Complexity of the case

2. Conduct of the applicants

3. Conduct of the Swiss authorities

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.

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.

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).

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

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.

Gérard WIARDA

President

For the Registrar

Herbert PETZOLD

Deputy Registrar