Facts
On 22 April 1959, the Federal Court declared the defendant's appeal against a judgment of the Higher Court of the canton of Schaffhausen inadmissible, as the judgment under appeal had been notified to the defendant's representative on 25 March 1959 and the defendant's appeal had only been filed on 15 April 1959, i.e. one day after the expiry of the 20-day appeal period provided for in Article 54 OG.
On 12 May 1959, five days after receiving the judgment of 22 April 1959, the defendant filed a complaint with the Federal Court, alleging that he had personally inquired with the registry of the Higher Court and had been informed that the time limit would expire on 15 April (instead of 14 April) and that it was sufficient to file the appeal on that date, which he had done.
An investigation with the President of the Higher Court revealed that the defendant had inquired by telephone with the registry of the Higher Court on 14 April 1959 and that the registry had indicated to him that the time limit would expire on 15 April due to a calculation error.
Considerations
The defendant's complaint is considered a request for restitution against the consequences of non-observance of the appeal period. Article 35 OG allows for restitution against the consequences of non-observance of a time limit, without distinguishing between legal and judicial time limits.
Restitution may be requested even if the trial has already been completed, and it may lead to the annulment of the decision to close the case. The res judicata of the Federal Court's decisions is not absolute, but is subject to the limitations resulting from the existence of legal means to suppress the res judicata, including restitution against the consequences of non-observance of a time limit.
The defendant was misled about the appeal procedure by the registry of…