ANKERL v. SWITZERLAND (61/1995/567/653) 23 October 1996: spouse of party to civil trial unable to be heard on oath as a witness -- Requirement of "equality of arms" applies also to litigation in which private interests are opposed and implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage

Switzerland (Canton of Geneva) - spouse of party to civil trial unable to be heard on oath as a witness

I. Preliminary objection (failure to exhaust domestic remedies)

Recapitulation of Court's case-law.

Complaint raised at least in substance before the Federal Court, which had therefore had an adequate opportunity to remedy by its own means the situation complained of.

Conclusion: objection dismissed (unanimously)

II. Article 6 § 1 of Convention

Requirement of "equality of arms" applies also to litigation in which private interests are opposed and implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent - a difference of treatment in respect of hearing of parties' witnesses may therefore be such as to infringe the principle in question.

The Court did not see how giving of evidence on oath by applicant's spouse could have influenced outcome of proceedings - applicant not placed at a substantial disadvantage vis-à-vis his opponent.

Conclusion: no violation (unanimously)

III. Article 14 of Convention taken together with Article 6 § 1

Question of compliance with principle of equality of arms already determined under Article 6 § 1 taken alone.

Conclusion: not necessary to examine complaint (unanimously)

I. The circumstances of the case

9. In 1978 Mr Guy Ankerl and his wife moved into a flat on the second floor of no. 3, rue Saint-Léger, Geneva. He subleased the flat from a property-management company, Régie Immobilière SA ("Régie Immobilière"), itself the tenant of a property company, SI Chrysanthemum SA ("Chrysanthemum"), the owner of the building.

A. Background

10. In the autumn of 1985 Mr Ruffieux became Chrysanthemum's main shareholder.

11. On 14 November 1986 the property-management company Régie Naef SA ("Naef"), which managed the building in which the flat in issue was located, informed the applicant that renovation and building work was going to be carried out on the block.

12. In a letter of 8 May 1987 Naef gave Régie Immobilière - which was in liquidation - notice to quit the flat with effect from 29 February 1988, the date of expiry of the lease, and requested them to terminate the subtenancy agreement with Mr Ankerl.

13. It would appear that Régie Immobilière asked Naef to collect the rent direct from Mr Ankerl. On 14 July 1987 Naef allegedly sent Mr Ankerl receipts relating to the payment of rent from April to July of that year and - what is denied by the applicant - specified that in collecting the sums in question they were not recognising the existence of any direct legal relationship between Mr Ankerl and Chrysanthemum.

14. In a registered letter of 21 July 1987 Régie Immobilière informed Mr Ankerl that they were terminating the subtenancy agreement with effect from its expiry. The applicant then applied to the Rents and Leases Conciliation Board for an extension of the agreement. No settlement having been reached, he applied to the Rents and Leases Tribunal but subsequently withdrew the application.

15. From February 1988 onwards the management of the block was taken over by the GPR Degenève SA agency ("GPR Degenève"). The latter notified the applicant of their bank account number. In an unanswered letter of 29 February 1988 Mr Ankerl confirmed to the agency that he would in future pay the rent into that account. He maintains that he did so each month from March 1988 to August 1991, taking care to write "rent" on the payment advice slips, without meeting any objection.

16. On 22 April 1988 the applicant and his wife had an interview -the terms of which are disputed - with Mr Linder, the director of GPR Degenève (see paragraph 18 below).

PROCEEDINGS BEFORE THE COMMISSION

27. The applicant applied to the Commission on 10 December 1990. Relying on Articles 6 § 1 and 14 of the Convention, he alleged that by hearing a witness for the opposing side on oath and not his wife, Mrs Méryl Ankerl, the Canton of Geneva Court of First Instance had disregarded the principle of equality of arms.

28. The Commission declared the application (no. 17748/91) admissible on 5 July 1994. In its report of 24 May 1995 (Article 31), it expressed the opinion that there had been no violation of Article 6 § 1 (seven votes to six) and that it was unnecessary to determine whether there had been a violation of Article 14 taken together with Article 6 § 1 (unanimously).

II. THE MERITS

A. Alleged violation of Article 6 § 1 of the Convention

35. The applicant complained of a breach of the principle of equality of arms between the parties before the Canton of Geneva Court of First Instance. This, he said, had resulted in a violation of the right to a fair hearing guaranteed in Article 6 § 1 of the Convention, which provides:

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

Mr Ankerl argued that he had maintained in the Court of First Instance that the conduct of GPR Degenève, which managed the building owned by the plaintiffs, showed that it had agreed to enter into a lease. He relied, in particular, on an interview that he, accompanied by his wife, had had with the director of the agency, Mr Linder, on 22 April 1988, which had, the applicant said, made that contractual relationship manifest. At the hearing on 19 May 1989 - whose purpose had been to establish what had been said during that interview - the court heard on oath, of the three people who had been present on 22 April 1988, only Mr Linder. Mrs Ankerl had been heard only for information purposes because as she was the wife of one of the parties, she was not in law allowed to take the oath. The "financial loyalty" binding Mr Linder to the plaintiff company that owned the building was, however, no less strong than matrimonial loyalty in a society in which family ties had weakened. By nonetheless attaching an exclusive "probative value" to Mr Linder's testimony, the court had clearly put the applicant at a disadvantage, infringed the principle of equality of arms and consequently breached his right to a fair hearing.

Mr Ankerl added that the evidence given by his wife, which had moreover been very accurate, had been reproduced only summarily in the transcript of the testimony; it had dealt with the consequences of the proposed renovations in the building and therefore with the contractual relationship between the tenant and the landlord. Furthermore, the letter of 14 July 1987 that was referred to in the reasons given in the Court of First Instance's judgment was a forgery which the court had blindly accepted as a fact without the defendant's having had an opportunity to examine it.

36. The Government replied that the facts of the case were different from those that had led the Court to find a breach of Article 6 § 1 in the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993 (Series A no. 274). In the Dutch courts the onus had been on the applicant company to establish that there had been an oral agreement between it and a bank concerning the extension of certain credit facilities. Two people had attended the meeting at which the agreement had allegedly been concluded: the representative of the applicant company and the representative of the bank. Only the latter had been allowed to give evidence as a witness; the judge had refused to call the company's representative as a witness on the ground that he was identified with the Dombo Beheer B.V. company. Having noted that during the negotiations the two protagonists had acted on an equal footing, each of them being empowered to negotiate on behalf of his party, the Court had concluded that the company had been placed at a substantial disadvantage vis-à-vis its opponent. In the instant case, on the other hand, Mr Linder had been only the director of the company appointed as agent to manage the plaintiff company's building; he did not belong to the plaintiff company, was not empowered to enter into a lease without its specific agreement and was not a party to the court proceedings. There had therefore been nothing to prevent the Court of First Instance hearing him as a witness. If a third party had been present at the interview in issue, Mr Ankerl could similarly have had that person give evidence under oath.

In the Government's submission, the truth of the matter was that Mr Ankerl had had no witness to be examined because by law, as in many countries, his wife could not be heard as a witness. The issue of complying with the principle of equality of arms only arose in situations that were comparable; the principle was not contravened solely because one of the parties was able to call a witness while the other was not able to do so.

At all events, the issue of compliance with the principle of equality of arms had to be looked at in the context of the fairness of the hearing as a whole. Thus, in the instant case, the Court of First Instance had looked at other evidence besides Mr Linder's testimony, to which, freely assessing the results of the measures taken to obtain evidence as required by cantonal law, it had moreover not attached paramount importance. The applicant had lost his case therefore not because his wife's statements - which the court had in any case taken into account - had not been taken on oath but because they had conflicted with irrefutable evidence. In short, there had been no breach of Article 6 § 1.

37. The Commission reached the same conclusion. Several factors led it to distinguish the instant case from the Dombo Beheer B.V. case, namely: it was a feature of many legal systems that parties in civil proceedings and persons closely related to them could not be heard as witnesses under oath; the Court of First Instance had based its judgment on other evidence besides Mr Linder's testimony; and Mrs Ankerl's statement had been vague and inconclusive.

38. The Court's task is to ascertain whether the proceedings in their entirety were "fair" within the meaning of Article 6 § 1. It reiterates in this connection that the requirement of "equality of arms", in the sense of a "fair balance" between the parties, applies also to litigation in which private interests are opposed; in such instances "equality of arms" implies that each party must be afforded a reasonable opportunity to present his case - including his evidence -under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see the Dombo Beheer B.V. judgment previously cited, p. 19, §§ 32-33). A difference of treatment in respect of the hearing of the parties' witnesses may therefore be such as to infringe the principle in question.

In the present case, however, although Mrs Ankerl was not able to give evidence on oath, she was heard by the Court of First Instance (see paragraph 18 above). In the exercise of its power freely to assess the evidence the court was entitled not to regard Mrs Ankerl's statements as decisive in regard to the conclusion of an unwritten agreement to enter into a lease; the Government pointed out, without being contradicted, that under cantonal law the court freely assesses the results of the "measures taken to obtain evidence" (see paragraph 25 above). Furthermore, it does not appear from the judgment that the court attached any particular weight to Mr Linder's testimony on account of his having given evidence on oath (see paragraph 19 above). Lastly, the court relied on evidence other than just the statements in issue.

The Court therefore does not see how the fact of Mrs Ankerl's giving evidence on oath could have influenced the outcome of the proceedings. Accordingly, the circumstances of the case, unlike those of the Dombo Beheer B.V. case, lead it to find that the difference of treatment in respect of the hearing of the parties' witnesses by the Court of First Instance did not place the applicant at a substantial disadvantage vis-à-vis his opponent.

In conclusion, there has not been a breach of Article 6 § 1.

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