Facts
The complainant A. suffered an accident with cognitive consequences in 1995 and has been studying for a Master’s degree in Environmental Sciences at ETH Zurich since autumn 2019. On 21 September 2020, he submitted an application for the issuance of a parking card, which ETH Zurich rejected by decision dated 19 November 2020. The appeal against this decision was dismissed by the ETH Appeals Commission by decision dated 16 September 2021, which remained uncontested.
On 15 October 2021, A. submitted a second application for the issuance of a parking card for the period from 10 to 23 January 2022. ETH Zurich rejected this by decision dated 11 November 2021. The appeal against this decision was not processed by the ETH Appeals Commission by decision dated 25 August 2022, as res iudicata was assumed and the complainant was ordered to pay costs due to wilful or negligent conduct of proceedings. A. appealed against this decision to the Federal Administrative Court, which dismissed the appeal by judgment dated 17 April 2023 and ordered him to pay costs of CHF 500.- due to wilful or negligent conduct of proceedings.
A. then lodged a public-law appeal with the Federal Supreme Court, requesting that the costs for the proceedings before the ETH Appeals Commission and the Federal Administrative Court not be imposed on him. The Federal Supreme Court granted the appeal.
Considerations
The Federal Supreme Court first examined the conditions for cost liability under Art. 10 para. 2 Disability Equality Act (DDA), according to which costs may be imposed on a party that acts wilfully or negligently. Cost liability comprises an objective and a subjective component: objectively, the party must have taken an obviously unfounded or hopeless position, and subjectively, this conduct must be reprehensible. A distinction between “wilful” and “negligent” conduct of proceedings is not required, as both terms describe the same conduct.
In the present case, the Federal Supreme Court rejected the assumption of res iudicata. In public law, material legal force generally only applies to judgments of judicial authorities, not to decisions of administrative authorities. At the time of the first decision-making procedure (September 2021), the ETH Appeals Commission was not a judicial authority within the meaning of Art. 30 Cst., as it did not have the required judicial independence. Therefore, its decision could not have binding effect that would qualify a subsequent initiation of proceedings as wilful or negligent.
Moreover, the right to legal recourse (Art. 29a Cst.) guarantees the right to submit a legal dispute at least once…