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You are here: BAILII >> Databases >> European Court of Human Rights >> ANKERL v. SWITZERLAND - 17748/91 [1996] ECHR 45 (23 October 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/45.html Cite as: [1996] ECHR 45, (2001) 32 EHRR 1

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In the case of Ankerl 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 A (2), as a Chamber composed of

the following judges:

Mr R. Bernhardt, President,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr I. Foighel,

Mr J.M. Morenilla,

Sir John Freeland,

Mr L. Wildhaber,

Mr B. Repik,

Mr P. Kuris,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 22 May and 24 September 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 61/1995/567/653. 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 A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") and by the Government of the

Swiss Confederation ("the Government") on 10 July and 28 August 1995

respectively, 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. 17748/91) against Switzerland lodged

with the Commission under Article 25 (art. 25) by a Swiss national,

Mr Guy Ankerl, on 10 December 1990.

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 32, 45,

47 and 48 (art. 32, 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 33 para. 3(d) of Rules of Court A, the applicant stated that he

wished to take part in the proceedings. The President gave him leave

to present his own case to the Court (Rule 30).

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 13 July 1995, 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 F. Gölcüklü,

Mr F. Matscher, Mr B. Walsh, Mr S.K. Martens, Mr J.M. Morenilla,

Sir John Freeland and Mr P. Kuris (Article 43 in fine of the Convention

and Rule 21 para. 5) (art. 43). Subsequently Mr I. Foighel and

Mr B. Repik, substitute judges, replaced Mr Martens, who had resigned,

and Mr Walsh, who was unable to take part in the further consideration

of the case (Rules 22 para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

acting through the Registrar, consulted the Agent of the Government,

the applicant and the Delegate of the Commission on the organisation

of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order

made in consequence, the registry received the applicant's and the

Government's memorials on 22 and 24 November 1995 respectively. On

14 December 1995 the Secretary to the Commission indicated that the

Delegate did not wish to reply in writing.

5. On 27 February 1996 the Commission produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

6. On 6 March 1996 the Registrar asked the applicant and the

Government to supply certain documents by 5 April 1996. The applicant

replied in a letter of 18 March that with one exception, of which he

enclosed a copy, he was not able to produce them. The Government

informed the Registrar on 3 April 1996 that it was "not possible to

accede to [the] request", but they nevertheless sent him a number of

documents on 9 and 13 May 1996.

7. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

20 May 1996. The Court had held a preparatory meeting beforehand.

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.D. Schmidt, former judge in the Canton of Geneva,

Mr F. Schürmann, Deputy Head of the European Law and

International Affairs Section, Federal Office

of Justice, Counsel;

(b) for the Commission

Mr F. Martínez, Delegate;

(c) the applicant.

The Court heard addresses by Mr Martínez, the applicant

himself, Mr Schürmann and Mr Boillat.

8. On 28 May 1996 the President of the Chamber received a letter

from Mr Ankerl in which the latter protested against the fact that the

documents filed out of time by the Government had nonetheless been

placed in the case file. On the President's instructions, the

Registrar sent a copy of Mr Ankerl's letter to the Government and to

the Commission. On 24 September 1996 the Court removed the documents

in question from the file (Rule 37 para. 1).

AS TO THE FACTS

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).

B. Proceedings in the Canton of Geneva Court of First Instance

17. On 15 November 1988 Chrysanthemum brought an action for

possession in the Canton of Geneva Court of First Instance, alleging

that the applicant was occupying the premises unlawfully since his

subtenancy agreement had been terminated.

Mr Ankerl argued that the court had no jurisdiction

ratione materiae, maintaining that he had an orally agreed lease from

the plaintiff.

The court thus had to determine whether the conduct of the

protagonists amounted to an agreement to enter into a lease after the

termination of the subtenancy.

18. The court held a hearing on 19 May 1989. It heard Mr Linder

(GPR Degenève), Mr Veuillet (Naef) and Mrs Ankerl; Mr Ruffieux

(Chrysanthemum) and the applicant also gave evidence. Only the

first two were heard as witnesses on oath.

The transcript of the testimony reads as follows:

"...

1. Mr Jean-Gabriel Linder ...

When I resumed [the management of the building in March 1988],

Mr Ankerl was occupying the premises but he had no written or

oral lease or even a tacit one.

It is true that I had an interview with Mr Ankerl on my own

initiative ... I wanted to know what Mr Ankerl's position

was. I made it clear to him that in my view he did not have

a lease.

Mr Ankerl said that he very much wished to remain in the flat

on sentimental grounds, having, so he said, written a book

there. He may have told me that he had earlier supposedly

been granted an oral lease, but I cannot state that with

certainty. At all events, Mr Ankerl did not ask me to have a

lease drawn up for him.

At the end of the interview Mr Ankerl suggested to me that he

pay a higher rent in order to be able to stay in the flat. I

suppose that implies that he was asking to be given a lease.

I told the defendant that I would pass on his request to the

landlord. I told him clearly, both at the beginning and at

the end of the interview, that I could not take a decision

myself.

I consequently informed the landlord of the conversation I

have just described. He told me that he did not wish to

proceed in the matter and he did not give me the reasons.

I did not myself communicate the shareholder's position to

Mr Ankerl but, on the other hand, I did send the file to our

lawyer, who must have informed him of the shareholder's

position.

My office staff must, it would seem, have communicated our

account number to Mr Ankerl when we took over from Naef.

...

I heard about an agreement that had earlier been made between

Naef and Mr Ankerl to the effect that Mr Ankerl should pay the

rent direct to Naef.

2. Mr Dominique Veuillet ...

I have worked for Naef since 1 March 1983.

...

We knew that Mr Ankerl was in de facto occupation of the

premises ...

... In 1986 or 1987 Mr Ankerl came to see me and told me that

his position vis-à-vis Régie Immobilière was a rather special

one. I cannot remember now the exact reasons. The defendant

asked that we should draw up a lease in his name.

At the same time Régie Immobilière had asked us to collect the

rent direct from Mr Ankerl ... I myself handed the file over

to another property-management company on 31 December 1987,

and at that time, as far as we were concerned, Mr Ankerl's

position remained as we had described in our letter of

14 July 1987 ...

It is true that on 14 November 1986 we had informed Mr Ankerl

about the proposed works in the building. That was because we

could not ignore his presence in the building.

...

3. Mrs Méryl Ankerl ...

I was present at the interview with Mr Linder in April 1988.

Mr Linder asked us what our intentions were regarding this

flat and we told him that we wanted to stay in it. He then

explained to us that the building was going to be made higher

and asked whether the works would not inconvenience us. We

replied that the works might perhaps inconvenience us but that

we would put up with it since we wanted to stay. Mr Linder

added that at all events the process would be a long one,

because the architect's plans had not been approved by the

Public Works Department. He also told us that during the

building work we could occupy another flat in the block and

that after the work was completed we could occupy a

newly built flat at the top of the house. Or else we could

move back into our second-floor flat.

When we left, Mr Linder told us that he would keep us

informed. When we came out we were really reassured and

optimistic.

Mr Linder never asked us to look for a flat elsewhere and he

did not indicate that we had to leave within a given time.

I cannot remember if Mr Linder said that he was going to

consult the landlord. I myself had the impression that he had

some freedom of action.

Mr Ruffieux: I have myself been the director of the plaintiffs

since October 1985. I have never set eyes on Mr Ankerl until

today. I once replied to a letter he had sent me asking for

an interview and I told him that his case was being dealt with

by Naef's legal department.

... It is true that I told Mr Linder that I refused to give

Mr Ankerl a lease. We had never accepted that Mr Ankerl had

a tenancy and I did not wish us to agree to it. I knew from

the beginning that Mr Ankerl was occupying the premises. He

is up to date with the rent.

I would not have been opposed to a settlement at the outset

but relations with Mr Ankerl have become difficult. I have

already allowed Mr Ankerl four years.

Mr Ankerl: When I concluded the lease with Régie Immobilière,

I did not realise that it was a subtenancy. I had consulted

a lawyer before signing it.

Mr Ruffieux says today that it is not easy to get on with me,

but he said before that he wanted us out because he wanted to

renovate his building."

19. On 12 October 1989 the court held that there was no

lease agreement between the parties and ordered Mr Ankerl to move all

property and persons from the flat and restore it to the plaintiffs in

good condition. The judgment reads as follows:

"...

Mr Veuillet, an employee of [Naef], told the Court that the

tenant, Régie Immobilière, had asked Naef to collect the rent

direct from Mr Ankerl.

This arrangement was accepted, the payments being received as

an indemnity for unlawful occupation, as appears from a letter

of 14 July 1987 ...

On 20 January 1988 the new management, the

GPR Degenève SA agency, wrote to Régie Immobilière SA, asking

that in future the company should pay the indemnity for

Mr Ankerl's unlawful occupation to their own office.

Mr Linder, an employee of the new management, told the Court

that he had had an interview with Mr Ankerl and had made it

clear to him that in his view Mr Ankerl did not have a lease.

Mr Ankerl, he said, implicitly requested that a lease should

be drawn up, to which Mr Linder said he had replied that it

was not for him to decide.

Mr Ruffieux, the director and shareholder of the plaintiffs,

told the Court that he had never agreed, and did not wish to

agree, to enter into a lease with the defendant.

However, ... Mr Ankerl had been supplied personally with

GPR Degenève's account number and wrote to that company on

29 February 1988 to inform them that in future he would pay

the rent into their account ...

That letter does not appear to have been answered, except

that, three months later, the lawyer instructed by the

landlord wrote to enquire when Mr Ankerl would be leaving.

The defendant's wife - who was present at her husband's

interview with Mr Linder - recalled from that interview that

the property-management company had been contemplating

offering them another flat in the building for the duration of

the works, and that when they had left Mr Linder, the couple

had had every reason to be reassured, seeing that they were

not being asked to leave the premises.

...

In law the only issue which it is necessary to resolve is

whether the defendant, since his sublease was terminated, has

been given a lease by the landlord.

A lease may be entered into orally, although it is to be noted

that property-management companies customarily draw up a

written agreement.

In the instant case no lease has been signed since the

termination of the sublease.

None of the documents produced discloses any agreement by the

plaintiffs to enter into a lease.

It remains to be determined whether, by not immediately or

clearly replying to the defendant's letter of 29 February 1988

or by allowing an employee of the property-management company

to tell the defendant that he was going to refer back to the

landlord, the plaintiffs may - under the doctrine of good

faith - have agreed to enter into a lease.

The Court reaches the conclusion that, in the circumstances of

this case, no lease was entered into orally (the existence of

an oral agreement has not been proved) or even implied by the

clear conduct of the parties.

While it is true that the defendant wishes to remain in the

flat, it is not even apparent from the evidence that he has

clearly asked for a lease to be drawn up.

Despite the unambiguous letters from the plaintiffs, the

defendant did not take the trouble to reply in writing.

He therefore could not truly suppose - in good faith - that

the plaintiffs were implicitly granting him a lease.

He had all the less reason to assume a tacit agreement of this

kind as, since the termination of the head lease, and

accordingly of the sublease, proceedings had been pending for

an extension of the lease, during which the landlord had

clearly denied being contractually bound to the defendant or

wishing to be.

Consequently, there is no lease between the parties.

... it must be held that the defendant is on the premises

unlawfully.

Article 641 para. 2 [of the Civil Code] applies in this case

..."

C. Proceedings in the Canton of Geneva Court of Justice

20. In a judgment of 7 June 1990 the Canton of Geneva Court of

Justice dismissed an appeal by Mr Ankerl on the following grounds:

"The Court cannot but agree with the court below that there

was no contractual relationship between the landlord,

Chrysanthemum SA, and Guy Ankerl. It is bold to argue that

the existence of a lease is evidenced by the conduct of the

landlord or of the landlord's representatives, who, on the

contrary, always emphasised their determination not to enter

into a lease with Guy Ankerl for flat at no. 3,

rue Saint-Léger, second floor. The fact of having handed over

rent receipts accompanied by the letter of 14 July 1987 or of

not having replied to the appellant's letter of

29 February 1988 cannot be construed as meaning that a lease

was in existence. It follows, in the absence of any lease,

that the Court of First Instance had jurisdiction

ratione materiae.

... According to this Court's case-law, a landlord is

entitled to raise his ownership against a subtenant and to

rely on Article 641 para. 2 [of the Civil Code], in the

absence of any legal relationship between the parties ...

The sublease is a lease between the tenant and the

subtenant ...

Having been given notice for 28 February 1988, Guy Ankerl,

from that date, no longer has any right to remain on the

premises.

..."

D. Proceedings in the Federal Court

21. The applicant lodged a public-law appeal with the Federal Court

against the Court of Justice's judgment. In his pleading he relied,

in particular, on Articles 6 and 14 of the Convention (art. 6, art. 14)

and argued:

"... the fact that [the cantonal courts] allowed the

representative of a party to be heard as a witness on oath

created a flagrant inequality vis-à-vis the other party, who

by the force of circumstance was not able to call witnesses to

whom the oath could be administered. The equality of arms

guaranteed both in the Federal Constitution and in the

European Convention on Human Rights was not ensured. Such

inequality is all the more flagrant where the court dealing

with the case has not taken the slightest account in its

decision of statements made by a witness, even if heard purely

for information purposes. This was a gross breach of the law,

which expressly provides, even if it precludes taking the

oath, that a spouse may testify and therefore implies that the

court dealing with the case will consider that evidence."

22. The First Civil Division of the Federal Court delivered its

judgment on 3 October 1990. It declared inadmissible - in particular -

the complaint based on a violation of Articles 6 and 14 of the

Convention (art. 6, art. 14), as follows:

"... On a public-law appeal, the Federal Court will consider

only the complaints adequately pleaded ... the notice of

appeal must contain, inter alia, a succinct statement of the

constitutional rights or legal principles violated, specifying

in what the breach consists (section 90 (1) (b) of the

Federal Judicature Act).

... In many respects, the present appeal does not comply with

this requirement that reasons must be given.

This is true ... of the ground based on a breach of Articles 6

and 14 (art. 6, art. 14) [of the] European Convention on

Human Rights, of which the appellant makes a bald assertion

without providing any explanation."

23. Dismissing the remainder of the appeal, the

First Civil Division said:

"The appellant also submitted that the Court of Justice had

made an arbitrary assessment of the evidence taken by the

court below.

...

... If the appellant's argument, which is not very clear, has

been understood correctly, the cantonal appellate court

inadmissibly took into account the interview that Mr Linder

had with the appellant in April 1988 in the presence of the

appellant's wife, in that it completely ignored her statements

and only took Mr Linder's statement into consideration.

In this connection it must be pointed out that the appellant's

wife was heard only for information purposes and without

taking the oath, in accordance with Article 226 [of the]

Civil Proceedings Act [of the Canton of Geneva]. According to

commentators on Geneva's Civil Proceedings Act, however,

hearing a witness for information purposes is of purely

informative import and has no probative value ... There was

therefore nothing arbitrary in the instant case in not taking

account of the explanations provided by Mrs Ankerl. The

appellant did not, moreover, show in what way the

cantonal appellate court had unsustainably interpreted the

statements made by the sworn witness Jean-Gabriel Linder.

Contrary to what he appeared to be arguing, the court below

did not infer from those statements that the witness had

indicated to the appellant that he would have to leave the

flat. It merely found that Mr Linder `confirmed that he would

pass on to the landlord Guy Ankerl's wish to enter into a new

lease'. The appellant did not attack that finding.

...

The present appeal is manifestly ill-founded, and it must

accordingly be dismissed in so far as it is admissible."

E. The applicant's departure

24. Mr and Mrs Ankerl left the flat in issue on 16 October 1991.

II. Relevant domestic law

A. Cantonal law

25. The relevant provisions of the

Canton of Geneva Civil Proceedings Act of 10 April 1987, which came

into force on 1 August 1987, are the following:

Article 196

"Unless otherwise laid down by law, the court shall freely

assess the results of measures taken to obtain evidence."

Article 222 para. 1

"Anyone of sound mind who has been lawfully summoned shall be

required to appear as a witness to give evidence on oath."

Article 225

"1. The following cannot be heard as witnesses:

(a) lineal relatives of one of the parties;

(b) brothers and sisters;

(c) uncles and nephews;

(d) relatives of the same degree by marriage;

(e) spouses, even if divorced.

2. The parties may, however, have these persons heard as

witnesses, with the exception of descendants, in proceedings

for withdrawal of parental authority, in matters concerning

personal status and in cases concerning judicial separation,

divorce and measures to preserve marital union."

Article 226

"The persons referred to in Article 225 para. 1 may be heard

as witnesses in other cases without distinction, but without

taking the oath and solely for information purposes.

..."

B. Federal law

26. Section 90 of the Federal Judicature Act of 16 December 1943

provides:

"1. In addition to identifying the order or decision being

appealed against, the notice of appeal must contain:

(a) the appellant's submissions; and

(b) a statement of the main facts and a succinct statement of

the constitutional rights or legal principles violated,

specifying in what the breach consists.

2. ..."

PROCEEDINGS BEFORE THE COMMISSION

27. The applicant applied to the Commission on 10 December 1990.

Relying on Articles 6 para. 1 and 14 of the Convention (art. 6-1,

art. 14), 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)

(art. 31), it expressed the opinion that there had been no violation

of Article 6 para. 1 (art. 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 para. 1 (art. 14+6-1)

(unanimously).

The full text of the Commission's opinion and of the dissenting

opinion 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 1996-V),

but a copy of the Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

29. In his memorial the applicant requested the Court to

"quash the Swiss Federal Court's judgment ..., which breaches

Switzerland's obligation to comply with Article 6 of the

Convention (art. 6)".

30. The Government invited the Court,

"as their primary submission, to hold that it has no

jurisdiction to take cognisance of the merits of the case on

account of the failure to exhaust domestic remedies and, in

the alternative, to hold that the Swiss authorities have not

infringed the ... Convention ... by reason of the facts which

gave rise to the application brought by Mr Guy Ankerl against

Switzerland".

AS TO THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

31. As before the Commission, the Government raised a preliminary

objection that domestic remedies had not been exhausted.

In the first place, by Article 26 of the Convention (art. 26)

it was necessary to submit to the national courts, in accordance with

the formal requirements of domestic law, the complaints subsequently

intended to be made before the Convention institutions. That condition

had not, the Government said, been satisfied in the instant case since

the Federal Court had held that Mr Ankerl's ground of appeal based on

Articles 6 and 14 of the Convention (art. 6, art. 14) was inadmissible

as the reasons in support of it were insufficient to satisfy the

requirements of section 90 of the Federal Judicature Act. It was not

for the Court to rule on the issue of compliance with such

requirements, which was a matter solely of domestic law.

In the second place, Mr Ankerl was now arguing that a provision

of the Canton of Geneva Civil Proceedings Act relating to the hearing

of witnesses was incompatible with the Convention. The application to

the Federal Court, however, had been concerned with a separate

complaint, being exclusively for an interpretation of the provision in

issue.

32. The applicant rejected that argument and referred to the

relevant extracts of his pleading before the Federal Court.

33. In its decision on the admissibility of the application the

Commission noted that in the Federal Court Mr Ankerl had complained of

a breach of the principle of equality of arms and had expressly relied

on Articles 6 and 14 of the Convention (art. 6, art. 14).

34. The Court reiterates that the purpose of Article 26 (art. 26)

is to afford the Contracting States the opportunity of preventing or

putting right the violations alleged against them before those

allegations are submitted to the Convention institutions. Thus the

complaint to be submitted to the Commission must first have been made

to the appropriate national courts, at least in substance, in

accordance with the formal requirements of domestic law and within the

prescribed time-limits (see, among other authorities, the

Remli v. France judgment of 23 April 1996, Reports of Judgments and

Decisions 1996-II, p. 571, para. 33). Article 26 (art. 26) must,

however, be applied with some degree of flexibility and without

excessive formalism (see, for example, the de Geouffre de la Pradelle

v. France judgment of 16 December 1992, Series A no. 253-B, p. 40,

para. 26, and the Hentrich v. France judgment of 22 September 1994,

Series A no. 296-A, p. 17, para. 30). In its recent judgment in the

case of Akdivar and Others v. Turkey the Court emphasised that "the

application of the rule must make due allowance for the fact that it

is being applied in the context of machinery for the protection of

human rights that the Contracting Parties have agreed to set up"

(judgment of 16 September 1996, Reports 1996-IV, p. 1211, para. 69).

In the instant case it is sufficient for the Court to find that

in his submissions to the Federal Court Mr Ankerl expressly relied on

the relevant provisions of the Convention and, at least in substance,

set out the complaint now made at Strasbourg (see paragraph 21 above).

He therefore gave the Federal Court an adequate opportunity to remedy

by its own means the situation complained of. The objection must

accordingly be dismissed.

II. THE MERITS

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

(art. 6-1)

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

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 ..."

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 para. 1 (art. 6-1) in the Dombo Beheer B.V.

v. the Netherlands judgment of 27 October 1993 (Series A no. 274). In

the Netherlands 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 para. 1 (art. 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 para. 1

(art. 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, paras. 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

para. 1 (art. 6-1).

B. Alleged violation of Article 14 of the Convention taken

together with Article 6 para. 1 (art. 14+6-1)

39. The applicant also complained, under Article 14 of the

Convention taken together with Article 6 para. 1 (art. 14+6-1), of

unequal treatment before the Court of First Instance in respect of the

hearing of witnesses.

40. The Government made no submissions on this point.

41. The Court has already determined the question of compliance

with the principle of equality of arms under Article 6 para. 1 taken

alone (art. 6-1). Like the Commission, it considers that no separate

issue arises under Articles 14 and 6 para. 1 taken together

(art. 14+6-1).

It is accordingly unnecessary to examine the complaint.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government's preliminary objection;

2. Holds that there has been no breach of Article 6 para. 1 of

the Convention (art. 6-1);

3. Holds that it is unnecessary to examine the complaint based on

Article 14 of the Convention taken together with

Article 6 para. 1 (art. 14+6-1).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 23 October 1996.

Signed: Rudolf BERNHARDT

President

Signed: Herbert PETZOLD

Registrar