CASE OF ANKERL v. SWITZERLAND
Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 6-1;Not necessary to examine Art. 14+6-1
John Freeland
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. 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). 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 ..." 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. ..." 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." 24. Mr and Mrs Ankerl left the flat in issue on 16 October 1991. 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: "Unless otherwise laid down by law, the court shall freely assess the results of measures taken to obtain evidence." "Anyone of sound mind who has been lawfully summoned shall be required to appear as a witness to give evidence on oath." "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." "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. ..." 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. ..."