CASE OF ZIMMERMANN AND STEINER v. SWITZERLAND
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
6. Mr. Werner Zimmermann and Mr. Johann Steiner were born in 1937 and 1904 respectively. Mr. Zimmermann is a fitter and resides at Uster (Zürich); Mr. Steiner is retired and resides at Bargen (Berne). 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. 7. In 1974, the applicants sought compensation from the Canton of Zürich for the damage caused by the noise and air pollution resulting from the operation of the airport; Mr. Zimmermann claimed a lump sum of 28,242 SF and Mr. Steiner a lump sum of 54,199 SF. Having been unable to arrive at a settlement with them, the Canton applied on 17 June 1974 for assessment proceedings to be opened under section 57 of the Federal Expropriation Act of 20 June 1930. The case was referred to the Federal Assessment Commission having jurisdiction in the matter, namely the Commission for the Tenth District; on this occasion it was presided over by a judge of the St. Gallen Higher Court and also comprised an architect, an engineer and the registrar of that court (sections 59 et seq. of the above-mentioned Act, Order of 24 April 1972 on the Federal Assessment Commissions and Order of 17 May 1972 on the Federal Assessment Districts). 8. The Assessment Commission rejected the applicants’ claims by a decision of 6 October 1976, which was served on them on 7 March 1977. It recognised that under Swiss case-law and legal theory tenants could in principle rely on the law of nuisance (voisinage) set out in the Civil Code (Articles 679 and 684); however, it considered that the applicants were alleging non-pecuniary damage and not damage to property, whereas only the latter fell to be taken into account under the Federal Expropriation Act. 9. On 18 April 1977, Mr. Zimmermann and Mr. Steiner lodged with the Federal Court an administrative-law appeal against the Federal Assessment Commission’s decision (section 77 § 1 of the Federal Expropriation Act). The Federal Court sought the views of the Assessment Commission on 27 April. The latter filed its observations on 18 May 1977 and the administrative authorities of the Canton of Zürich filed theirs on 24 May 1977. This concluded the pleadings (procédure contradictoire). 10. The applicants’ lawyer wrote to the Federal Court on 8 September 1978 to enquire about the state of the proceedings. It replied, on 21 September, that it had not yet been able to deal with the case because of its excessive workload, but hoped to be able to give a decision during the coming months. The Federal Court enclosed with its letter a copy of the observations filed by the Canton of Zürich. 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. 11. The First Public-Law Chamber of the Federal Court dismissed the appeal on 15 October 1980. 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). 12. According to the statistics supplied by the Government, from 1969 to 1979 the total number of appeals rose from 1,629 to 3,037, that is an increase of 86%. The rate of growth was 107% for public-law appeals (1,336 against 634) and as much as 318% for administrative-law appeals (590 against 141). 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). 13. In its report for 1977, dated 14 February 1978, the Federal Court recorded that there had been no diminution in the growth of its caseload, above all in the area of public and administrative law. It attributed this not only to the extension of the Confederation’s powers in administrative matters but also to the fact that citizens were having increased resort to the guarantees which the law afforded to them vis-à-vis the public authorities. 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. 14. These reforms were to prove insufficient. In its management report for 1979, dated 12 February 1980, the Federal Court recorded that 3,037 cases had been brought and 2,786 disposed of during the year; however, it had been necessary to carry over to 1980 the examination of some 1,565 cases that is more than half of those registered in 1979. The Federal Court observed that the vast majority (84%) of the cases remaining on its list concerned public and administrative law and stated: "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). 15. In its management report for 1980, dated 6 February 1981, the Federal Court pointed out that the situation was still serious. It regretted that the two legislative Chambers had not yet been able to adopt the Government’s proposals and added: "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". 16. Quite apart from these decisions intended to cater for the immediate problem, the Federal committee of experts preparing a full-scale revision of the Federal Constitution of the Courts Act of 16 December 1943, designed to reduce the Federal Court’s workload and accelerate its proceedings, completed its work at the end of 1981. Recently, the Federal Office of Justice and Police submitted a preliminary draft text to the Government, with a view to setting in motion a consultation procedure which should be terminated in 1983. 17. The Federal Court has itself taken practical steps aimed at coping with its backlog of pending business. Believing that to process cases in chronological order would give rise to serious injustices, it has, in particular, utilised a system, known as "sorting", based on the degree of urgency and the human implications of each case.