Facts

Parties and authorities: The appellant ([A.A.] ), represented by counsel, opposes the respondent ([B.A.] ), represented by counsel. The contested decision was issued by the Civil Chamber of the Geneva Court of Justice (judgment of 7 October 2019, C/11255/2016, ACJC/1502/2019).

Subject matter: removal from the docket, denial of justice (provisional measures), in divorce proceedings.

Chronology

  • 15 November 2016: the appellant filed a request for provisional measures with the Court of First Instance, renewed on 23 November 2018.
  • 25 June 2019: the appellant requested a prompt decision from the Court of First Instance, approximately 31 months after the initial request.
  • 16 July 2019: the appellant filed an appeal for denial of justice and unjustified delay in ruling, 21 days later.
  • 14 August 2019: the Court of First Instance issued its order.
  • 16 August 2019: the appellant withdrew her appeal.
  • 7 October 2019: the Civil Chamber took note of the withdrawal, placed the judicial costs of the appeal (CHF 400) on the appellant, ordered her to pay CHF 1'292.40 in costs to the respondent and removed the case from the docket.

Appeal to the Federal Supreme Court (20 November 2019): the appellant seeks remittal of the case to the lower authority and requests legal aid, with the appointment of her counsel as court-appointed counsel. She invokes an inaccurate establishment of the facts (art. 97 FSCA), arbitrariness (art. 9 Cst.) in the establishment of the facts and in the setting of costs and fees, as well as an abuse of rights by the Court of First Instance.

Considerations

Admissibility (submissions): the appeal in civil matters is a reform remedy (art. 107 para. 2 FSCA). The appellant should have made precise reformatory submissions on the merits; she merely sought annulment and remittal. Given her representation by counsel and the nature of the dispute (costs and fees), she was able to do so. Admissibility is therefore doubtful, but the Federal Supreme Court leaves the question open, as the appeal must be dismissed outright.

Limited scope of review: this is a decision on provisional measures within the meaning of art. 98 FSCA, so only the violation of constitutional rights may be invoked, in accordance with the principle of allegation (art. 106 para. 2 FSCA). The complaint of inaccurate establishment of the facts (art. 97 FSCA) is examined only from the angle of arbitrariness (art. 9 Cst.), and the appellant must clearly demonstrate how the conditions of arbitrariness are met.

Establishment of the facts: the statement of facts in the cantonal judgment is very summary and non-chronological, but it mentions the essential elements (request of 25 June 2019, appeal of 16 July 2019, order of 14 August 2019, withdrawal of 16 August 2019). For a decision removing a case from the docket following a withdrawal, a more detailed account is not essential, and the understanding of the case is not hindered. The appellant does not explain how a supplemented statement of facts would affect the outcome of the dispute. The complaint is dismissed to the extent it is admissible.

Costs and fees (arbitrariness, art. 9 Cst.): a party has the remedy of an appeal for denial of justice to obtain a formal decision. A decision is arbitrary only if it is manifestly untenable, grossly disregards a clear norm or principle, or shocks the sense of justice. The appellant had waited nearly 31 months before requesting a decision, and then filed her appeal…