Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35208/97

by ZENTRALRAT DEUTSCHER SINTI UND ROMA

and Romani ROSE

against Germany

The European Commission of Human Rights sitting in private on

27 May 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 February 1997

by ZENTRALRAT DEUTSCHER SINTI UND ROMA and Romani ROSE against Germany

and registered on 7 March 1997 under file No. 35208/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a registered association uniting local and

regional associations of German Sinti and Roma. It has its seat in

Heidelberg. The second applicant is the President of the first

applicant and is also representing the latter in the proceedings before

the Commission.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

On 25 September 1996 the Bochum District Court (Amtsgericht), in

proceedings relating to a lease contract, gave the following reasons

as to why the landlord had rightly refused the tenants' proposal of a

subsequent tenant (Nachmieter).

"Insoweit waren die Kläger nach Ansicht des Gerichtes berechtigt,

weitere Bemühungen um einen Nachmieter abzulehnen, da die Beklagten

nach den Bekundungen des gleichen Zeugen einen Zigeuner als Nachmieter

anboten. Diese Bevölkerungsgruppe ist traditionsgemäß überwiegend nicht

seßhaft und gehört aus Vermietersicht daher so offensichtlich nicht zu

den durchschnittlich geeigneten Mietern mit zutreffender

Zukunftsprognose, daß die Erwartungen weiterer fruchtbarer

Vermittlungszusammenarbeit aus der Sicht der Kläger zurecht gestört und

nicht mehr fortzusetzen war."

"To this extent, the plaintiffs were, in the opinion of the

court, justified in refusing to consider any further proposals for a

subsequent tenant as, according to the evidence given by the same

witness, the defendants had proposed a gipsy as subsequent tenant.

Traditionally, this ethnic group is predominantly unsettled and, from

a landlord's point of view, is clearly so unrepresentative of the

average suitable tenant, with the corresponding outlook for the future,

that expectations of further fruitful negotiations were, from the

plaintiffs' point of view, fully unfounded and untenable."

The applicants were not a party to the above proceedings. They

learned about the judgment by a newspaper article of 25 October 1996.

On 15 November 1996 the applicant association, represented by its

President, i.e. the second applicant, addressed a letter to the

Minister of Justice of Northrhine-Westfalia, expressing its concern

about the discriminatory view voiced in the above judgment, namely that

a gipsy was not a suitable tenant. It noted that, according to its

information, no appeal lay against the judgment and drew attention to

the possible repercussions of the court's finding, which had meanwhile

become known nationally as well as internationally. The applicant

association requested the Minister of Justice to hold a press

conference and to give a public clarification that such opinions did

not have a place in present day Germany. Moreover, it requested him to

take appropriate steps against the responsible judge.

The Minister of Justice of Northrhine-Westfalia replied on

19 November 1996. He stated that he had immediately ordered an

administrative supervision (dienstaufsichtsrechtliche Prüfung).

However, according to the Basic Law (Grundgesetz), judges were

independent. Administrative supervision could only serve to examine

whether they carried out their duties formally correctly and without

delay. While he, in his capacity as administrative superior

(Dienstvorgesetzter), could not criticise any decisions taken by a

judge, he had already commented on the judgment at issue on

16 November 1996 in a newspaper article. Moreover, the applicant

association's comments had been transmitted to the judge concerned.

COMPLAINTS

The applicants complain under Article 14 of the Convention in

conjunction with Article 2 para. 1 of Protocol No. 4 and in conjunction

with Article 1 of Protocol No. 1. The applicant association,

emphasising that under the terms of its statutes one of its aims is to

oppose any discrimination against Sinti and Roma, raises these

complaints as a representative of its members, who according to its

submissions are about 70,000 German Sinti and Roma. The applicants

submit that the judgment of the Bochum District Court discriminates

against Sinti and Roma on account of their adherence to a national

minority and infringes their freedom to choose their residence and

their right to the peaceful enjoyment of their possessions. They point

out that Germany has signed the Framework Convention on National

Minorities of the Council of Europe and has recognised them as a

national minority.

THE LAW

The applicants complain that the judgment of the Bochum District

Court of 25 September 1996 discriminates against Sinti and Roma on

account of their adherence to a national minority and infringes their

freedom to choose their residence and their right to the peaceful

enjoyment of their possessions. They invoke Article 14 of the

Convention in conjunction with Article 2 para. 1 of Protocol No. 4 and

in conjunction with Article 1 of Protocol No. 1 (Art. 14+P4-2-1+P1-1).

The Commission notes that neither of the applicants was a party

to the proceedings in which the impugned judgment was rendered. It

will, therefore, first examine whether the applicants can claim to be

victims within the meaning of Article 25 (Art. 25) of the Convention

of a violation of their rights guaranteed by the Convention and its

Protocols.

Article 25 para. 1 (Art. 25-1), so far as relevant, reads as

follows:

"The Commission may receive petitions addressed to the Secretary

General of the Council of Europe from any person, non-

governmental organisation or group of individuals claiming to be

the victim of a violation by one of the High Contracting Parties

of the rights set forth in this Convention, provided that the

High Contracting Party against which the complaint has been

lodged has declared that it recognises the competence of the

Commission to receive such petitions. ..."

The Commission recalls that the concept of "victim" as used in

Article 25 (Art. 25) of the Convention must be interpreted autonomously

and independently of concepts of domestic law such as those concerning

the interest in taking proceedings or the capacity to do so. An

applicant can only claim to be a victim of a violation of one of the

rights and

freedoms recognised by the Convention if there is a sufficiently direct

link between the applicant and the damage which he considers that he

has sustained as a result of the alleged breach (cf. No. 11724/85,

Dec. 5.2.90, D.R. 64 p. 72, 82).

As to the first applicant, i.e. the applicant association, the

Commission recalls its established case-law, according to which a

corporate applicant cannot claim to be itself a victim of measures

alleged to have interfered with the Convention rights of its individual

members (cf. No. 18598/91, Dec. 18.5.94, D.R. 78 p. 71, 77;

No. 24581/94, Dec. 6.4.95, D.R. 81 p. 123, 126).

The Commission notes that the applicant association in the

present case does not claim to be a victim itself but explicitly raises

the complaints as representative of its individual members which are,

according to its submissions, about 70,000 German Sinti and Roma.

However, the Commission recalls that, in this case, it is essential for

the applicant association to identify the individuals represented by

it and to show that it has received specific instructions from each of

them (cf. No. 10983/84, Dec. 12.5.86, D.R. 47 p. 225). The Commission

notes that, in the present case, the applicant association has not

complied with this requirement.

The second applicant may be understood to complain that,

notwithstanding the fact that he was not a party to the proceedings

before the Bochum District Court, he is - as a member of the minority

concerned - affected by its judgment.

The Commission recalls that the Convention organs are not called

upon to examine in abstracto whether legal regulations are in

conformity with the Convention. However, an individual may, in certain

circumstances, be directly affected by legal regulations, and hence

claim to be a victim of an alleged breach of the Convention (cf. in

particular No. 6959/75, Brüggemann und Scheuten v. Germany,

Dec. 19.5.76, D.R. 5 p. 103, 115, concerning a complaint about the

legal regulation of abortion, resulting from a judgment of the Federal

Constitutional Court, brought by two women, who did not claim to be

pregnant or to have been prosecuted for unlawful abortion; see also

Eur. Court HR, Klass and Others v. Germany judgment of

6 September 1978, Series A no. 28, p. 17 et seq., paras. 33-38,

concerning legislation relating to secret surveillance measures

potentially applicable without notification to all users of postal and

telecommunications services, brought by applicants who were, due to the

nature of the measures, unable to allege that they had actually been

subject to surveillance; Dudgeon v. the United Kingdom judgment of

22 October 1981, Series A no. 45, p. 18, paras. 40-41; Norris v.

Ireland judgment of 26 October 1988, Series A no. 142, p. 15 et seq.,

paras. 30-34; Modinos v. Cyprus judgment of 22 April 1993, Series A

no. 259, p. 10 et seq., paras 17-24, all concerning legislation

prohibiting certain homosexual acts between consenting male adults

brought by homosexuals, who had not actually been prosecuted).

However, the Commission notes that what is at issue in the

present case is not legislation or the legal situation created by a

judgment of a Constitutional Court like in the Brüggemann and Scheuten

case, but a judgment, given by a single judge of a first instance

court. There is no indication that this judgment represents the State's

general approach to Sinti and Roma or that the second applicant risks

to be subjected to a similar finding in actual or potential litigation.

In these circumstances, the Commission finds that the second applicant

cannot claim to be a victim within the meaning of Article 25 (Art. 25)

of an alleged violation of his rights set forth in the Convention.

It follows that the application is incompatible ratione personae

with the provisions of the Convention, within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

Menu

ZENTRALRAT DEUTSCHER SINTI UND ROMA AND ROSE v. GERMANY

ZENTRALRAT DEUTSCHER SINTI UND ROMA AND ROSE v. GERMANY

LEXI