HILPERT v. SWITZERLAND
Inadmissible
Georg Ress
The applicant, a German citizen, resides in Berlin. In 1999, the applicant filed an action with the Basel-Stadt Civil Court (Zivilgericht) against his former lawyer, claiming damages of 140,000 Swiss francs (CHF) for negligent representation. Subsequently, he filed a request for legal aid. On 28 February 2000, the Civil Court dismissed the applicant’s request for legal aid as he had not demonstrated his indigence and, after a summary examination of the case, as the action lacked prospects of success. Against this decision the applicant filed a complaint (Beschwerde) with Court of Appeal (Appellationsgericht) of the Canton of Basel-Stadt which the latter declared inadmissible on 28 March 2000. In its decision the court stated, inter alia: “whereas according to Section 243 of the Code of Civil Procedure (hereafter: CCP) a complaint must be filed within 10 days after the contested decision was rendered ... whereas the contested decision was served on the applicant’s representative on 29 February 2000; the period for filing the complaint therefore began on 1 March 2000 and ended on 10 March 2000; whereas according to S. 34a § 1 CCP the time-limit will be complied with if the complaint was filed with the court, or transmitted to the Swiss postal service, at the latest on the last day; whereas if a person abroad files a complaint, it will suffice if the complaint is filed with a Swiss diplomatic or consular representation abroad, though it is insufficient if the submission is merely transmitted to the foreign postal service ... ; whereas the applicant transmitted his complaint to the German postal service in Berlin on 10 March 2000, i.e., on the last day of the time-limit, and that the complaint arrived only on 14 March 2000 in the area of the Swiss postal service, and was received by the Civil Court on the same day; whereas the complaint was, therefore, filed only after the expiry of the time-limit for which reason it cannot be admitted on account of the delay ...” The applicant filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht) in which he complained, inter alia, that it was customary (üblich) to accept the German postal service as the recipient for such submissions, and that as he was a German, it was not possible for him to send them to the Swiss embassy in Germany. On 6 June 2000 the Federal Court partly dismissed and partly rejected the applicant’s public law appeal. It considered that S. 34a CCP corresponded with S. 12 of the Federal Act on International Private Law (Bundesgesetz über das internationale Privatrecht) according to which it sufficed for persons living abroad to submit their documents on the last day of the time-limit to the Swiss diplomatic or consular representation. The judgment continued: “In this respect there has been no arbitrary interpretation or application of S. 34a CCP. Finally, insofar as it has been maintained that the Swiss diplomatic or consular representations in Germany would not accept submissions from non-Swiss citizens destined for courts, this is a mere assertion, which has not been substantiated and which need not be dealt with any further ...” On 27 June 2000, upon the applicant’s request, the Swiss embassy in Berlin wrote a letter to the applicant as follows: “Many thanks for your letters of 22 and 24 June 2000. I can herewith confirm that - based on internal instructions - submissions to cantonal courts may not be transmitted by diplomatic bag (Kurier) via a Swiss foreign representation. Furthermore, I must inform you that mail may not be deposited at the embassy which, as you claim in your letter of 22 June 2000, the opposing party has suggested.” S. 34a of the Code of Civil Procedure of the Canton of Basel-Stadt provides, inter alia, that a time-limit shall be complied with if the submission concerned is transmitted, on the last day of the time-limit, to the Swiss postal service, or, if the person is abroad, if it is submitted on this day to a Swiss diplomatic or consular representation. S. 243 provides, inter alia, that a complaint against a decision must be filed in writing within 10 days after the decision was rendered. S. 12 of the Federal Act on International Private Law states that, in order for a person abroad to comply with a time-limit before Swiss authorities, it suffices if the submission arrives on the last day of the time-limit at a Swiss diplomatic or consular representation.