AS TO THE ADMISSIBILITY OF

                      Application No. 29754/96

                      by Ingrid and Hans SCHMITT

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 12 December 1995

by Ingrid and Hans SCHMITT against Germany and registered on

8 January 1996 under file No. 29754/96;

     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 applicants are German nationals and a married couple.  They

are resident at Petersdorf.  In the proceedings before the Commission,

they are represented by Mr. C. Freiherr von Stackelberg, a lawyer

practising in Karlsruhe.

     In 1988 Mr. W. instituted proceedings before the Augsburg

Regional Court (Landgericht), claiming payment of about DM 730,000 and

interest, namely amounts of money which the applicants had allegedly

fraudulently obtained between 1980 and 1988 while the first applicant

had been living together with the plaintiff.  The plaintiff alleged

that the first applicant had falsely told him that she had separated

from her husband and had introduced the second applicant as her cousin;

she had claimed to be wealthy and to be in receipt of a high capital

income.  He had made the payments to the first applicant upon her offer

to invest it under advantageous conditions.  The defendants denied

having defrauded the plaintiff and also claimed various single items

of expenditure.  In these and the following proceedings the applicants

were represented by counsel.

     On 19 September 1991 the Augsburg Regional Court convicted the

first applicant of fraud, and the second applicant of having acted as

accomplice to fraud.

     On 8 March 1993 the Augsburg Regional Court ordered the

applicants to pay to the plaintiff a sum of money amounting to about

DM 585,562.10 and interest.  The Regional Court awarded this sum under

the head of tort, finding that the first applicant had obtained from

the plaintiff repayable sums of money amounting to altogether

DM 682,648.13 without having ever intended to pay these amounts back.

Repayments of DM 72,086,03 and a DM 25,000 loan given by the first

applicant to the plaintiff were deducted.  In its evaluation of

evidence, the Regional Court had regard to various documents relating

to the payments made by the plaintiff to the first applicant.  The

Regional Court considered that the applicants had failed to prove their

allegation that the loan document had been a fictitious contract.

While it was not in dispute that the plaintiff, in his own earlier

divorce proceedings, had concealed his assets by, inter alia,

concluding fictitious contracts with the first applicant, the

applicants had not expressly alleged and had not offered any proof that

the loan document formed part of these fictitious transactions.  In

this respect the Regional Court observed that a loan contract was not

a suitable means of concealing assets.  Moreover, by merely denying the

receipt of the amounts in question, the applicants had not been able

to refute the presumption of payment based on the loan document.  Some

further payments made by the plaintiff to the first applicant had been

proved on the basis of bank statements or on the basis of the

applicants' statements in the criminal proceedings against them.

Moreover, to the extent that the applicants admitted the receipt of

further payments, but claimed that the plaintiff had been bound by

contract or that the moneys were used for common expenditure, they had

failed to furnish proof of their allegations.  In this respect, the

Regional Court observed that in view of the amount of some of the

payments, namely more than DM 100,000 or DM 55,000, respectively, the

assumption that they had been made to cover household expenditure was

not very likely.  The Regional Court, having regard to the applicants'

further submissions on payments made to the plaintiff, found that they

had failed to prove the payment of sums exceeding the above-mentioned

amounts.

     On 16 February 1994 the Munich Court of Appeal (Oberlandes-

gericht) dismissed the applicants' appeal (Berufung).  The Court of

Appeal, having considered the applicants' appeal submissions, confirmed

the first instance court's findings.

     The Court of Appeal considered in particular that the first

applicant had defrauded the plaintiff; the question of whether the

plaintiff had been aware of the second applicant's true relationship

with the first applicant had been only one of the elements showing her

intention to deceive the plaintiff.  However, there was further

corroborating evidence.  The Court of Appeal noted in particular the

applicants' firm denial, following the parties' separation in 1988, of

any obligation to pay back the amounts of moneys obtained from the

plaintiff.  The applicants had also failed to comment on various other

circumstances, i.e. the undisputed payment of some of the sums

involved, as confirmed by the applicants' conviction, as well as the

fact that the first applicant had immediately used some of the sums to

cover her own debts.

     Furthermore, the Court of Appeal, in assessing the evidence

before it, found that the deception as to the second applicant's status

confirmed the applicants' fraudulent intentions.  In particular, in the

first instance proceedings, the applicants had admitted having

introduced the second applicant as the first applicant's cousin.  This

statement had not been validly withdrawn.  The applicants had failed

to show any factual circumstances to prove that the plaintiff had any

doubts in this regard.  Their supposition that the plaintiff had been

in a position to realise the second applicant's identity at the very

beginning of their relationship was a mere speculation and as such not

susceptible of proof.  In any event, the applicants had stated in the

course of the first instance proceedings that, when the second

applicant was introduced to the plaintiff some four to five years

later, the plaintiff had still not been aware of his identity.  The

requests for the taking of evidence as to whether the plaintiff, in the

context of his divorce proceedings, had been in a position to discover

that the first applicant was still married and had no own financial

means, was refused on the ground that the applicants' submissions on

this point were inconclusive.  Moreover, the Court of Appeal noted

that, in the course of the criminal proceedings, all witnesses had

confirmed that the second applicant's identity was to be concealed from

the plaintiff.  The applicants had failed to comment on these findings

in the civil proceedings.  The Court of Appeal refused the applicants'

request to hear a witness on the question of the plaintiff's general

knowledge about the first applicant's family situation as the request

to summon the witness had not in any way referred to the crucial

question whether the plaintiff had been aware, in 1985 or earlier, that

the second applicant was the husband of the first applicant and that

he had the power to dispose of the moneys in the relevant account.

     As regards the applicants' defence that substantial amounts had

been used as expenditure for the plaintiff's and her living, in

particular for expensive travelling, the Court of Appeal found that the

applicants had failed to show that the amounts claimed by the plaintiff

had been transferred to her to cover the said expenditure.

     As regards the second applicant's joint and several liability

(Gesamtschuldnerschaft), the Court of Appeal found that he had

supported the first applicant in defrauding the plaintiff.

     On 7 February 1995 the Federal Court of Justice

(Bundesgerichtshof) refused to accept the applicants' appeal on points

of law (Revision).  The Federal Court of Justice stated that the case

did not raise any question of fundamental importance and offered no

prospect of success.

     According to S. 554b of the German Civil Code (Zivilprozeß-

ordnung), in disputes concerning pecuniary claims exceeding DM 60,000,

the court of cassation, with a two-third majority, may refuse

acceptance of an appeal on points of law if the case does not raise any

question of fundamental importance.

     On 13 March 1995 the applicants lodged a constitutional complaint

(Verfassungsbeschwerde) with the Federal Constitutional Court

(Bundesverfassungsgericht), alleging that the civil court decisions

infringed their constitutional rights.

     Sitting as a panel of three members, on 16 June 1995 the Third

Section of the Second Division (dritte Kammer des Zweiten Senats) of

the Federal Constitutional Court declined to accept the case for

adjudication.  In its summary decision the Federal Constitutional Court

referred to S. 93b, taken in conjunction with S. 93a, of the Federal

Constitutional Court Act (Gesetz über das Bundesverfassungsgericht),

in the version of 11 August 1993.  The decision was notified to the

second applicant on 28 June 1994.

     According to Article 93 para. 1 (4a) of the Basic Law

(Grundgesetz) the Federal Constitutional Court rules on constitutional

complaints which may be lodged by any person who considers that the

public authorities have infringed one of his or her fundamental rights

or one of his or her rights as guaranteed under Articles 20 (4), 33,

38, 101, 103 and 104 of the Basic Law.

     The composition and functioning of the Federal Constitutional

Court are governed by the Federal Constitutional Court Act.

     SS. 90 to 96 concern constitutional complaints.  S. 90 para. 1

determines the right to bring such proceedings in line with Article 93

para. 1 (4a) of the Basic Law.  In its paragraph 2, it lays down a rule

on the exhaustion on ordinary remedies.  Any complaint has to be

reasoned in accordance with S. 92.

     S. 93a para. 1 provides that a constitutional complaint requires

acceptance prior to a decision (Annahme zur Entscheidung).  According

to paragraph 2 of S. 93a, a constitutional complaint shall be accepted

if (a) it raises questions of fundamental importance from a

constitutional point of view, or (b) if such acceptance is necessary

for the protection of the rights enumerated in S. 90 para. 1; this may

also be the case if the refusal of acceptance would cause the

complainant a particularly serious prejudice. S. 93d contains further

procedural rules, including the rule that the decision to decline

acceptance does not require any particular reasoning.

     S. 95 provides that if a constitutional complaint is upheld, the

decision shall state which provision of the Basic Law has been

infringed and by which act or omission.  If a decision is concerned,

the Federal Constitutional Court shall quash the decision.

COMPLAINTS

1.   The applicants complain under Article 6 paras. 1 and 3 (d) of the

Convention about the German court decisions.  They also submit that the

proceedings before the Munich Court of Appeal were unfair.  In

particular the Court of Appeal unduly disregarded their requests to

take further evidence as to the plaintiff's awareness of the second

applicant's status.  Moreover, in their view, the Court of Appeal

should have taken evidence on the question whether some of the amounts

involved had been used, in agreement with the plaintiff, for their

common living.  Finally, the Court of Appeal erroneously considered

that the second applicant's general support of the first applicant

justified his joint and several liability.

2.   The applicants further complain under Article 6 para. 1 about the

lack of reasoning in both the decisions of the Federal Court of Justice

of 7 February 1995 and of the Federal Constitutional Court of

16 June 1995.

THE LAW

1.   The applicants complain under Article 6 paras. 1 and 3 (d)

(Art. 6-1, 6-3-d) of the Convention about the German court decisions

and also of the proceedings concerned.

2.   With regard to the judicial decisions of which the applicants

complain, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77-A, pp. 81, 88; and

Eur. Court HR, Van de Hurk v. the Netherlands judgment of

19 April 1994, Series A no. 288, p. 20, para. 61; Klaas v. Germany

judgment of 22 September 1993, Series A no. 269, p. 17, para. 29).

3.   As regards their complaint about the alleged unfairness of the

proceedings before the Munich Court of Appeal, the applicants rely on

Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.

     The Commission has examined the applicants' arguments regarding

the civil compensation case brought against them under Article 6

para. 1 (Art. 6-1) which, so far as relevant, provides:

     "In the determination of his civil rights and obligations ...,

     everyone is entitled to a fair ... hearing ... by [a] ...

     tribunal ..."

     As regards the applicant's complaints about the taking and

evaluation of evidence, the Commission recalls that it is not for the

Convention organs to substitute their own assessment of the facts for

that of the domestic courts and, as a general rule, it is for these

courts to assess the evidence before them as well as the relevance of

the evidence which the defendants seek to adduce.  The task under the

Convention is to ascertain whether the proceedings in their entirety

were fair (cf., mutatis mutandis, Eur. Court HR., Bricmont v. Belgium

judgment of 7 July 1989, Series A no. 158, p. 31, para. 89; Vidal v.

Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33,

para. 33).

     The applicants submit in particular that the Court of Appeal

unduly disregarded their requests to take further evidence as to the

plaintiff's awareness of the second applicant's status.  Moreover, in

their view, the Court of Appeal should have taken evidence on the

question whether some of the amounts involved had been used, in

agreement with the plaintiff, for their common expenditure.

     The Commission notes that the Augsburg Regional Court, in its

judgment of 8 March 1993 upheld the plaintiff's claims in tort against

the applicants for repayment of sums of money previously transferred

to the first applicant.  This judgment was confirmed by the Munich

Court of Appeal upon the applicants' appeal.

     The Commission finds that the respective courts carefully

examined the applicants' submissions to disprove the plaintiff's

allegations of tort and to establish counter-claims or other reasons

warranting a reduction of the sums claimed.  The applicants,

represented by counsel, had adequate opportunity to put forward their

arguments and request the taking of any relevant evidence.   To the

extent that the Munich Court of Appeal did not take evidence as

requested by the applicants, the Court of Appeal gave reasons why it

had considered the applicants' submissions inconclusive or irrelevant.

     Having regard to all circumstances, the Commission finds no

sufficient grounds to conclude that the Court of Appeal's taking of

evidence in the applicants' case was incompatible with Article 6

(Art. 6).

4.   The application further relates to the alleged lack of a

sufficient reasoning in both the decision of the Federal Court of

Justice refusing acceptance of the applicants' appeal on points of law

as well as in the decision of the Federal Constitutional Court,

according to which it declined to accept their constitutional

complaint.  The applicants invoke Article 6 para. 1 (Art. 6-1).

a.   The Commission recalls that Article 6 para. 1 (Art. 6-1) obliges

the courts to give reasons for their judgments, but cannot be

understood as requiring a detailed answer to every argument (cf. Eur.

Court HR, Ruiz Torija and Hiro Balani v. Spain judgments of 9 December

1994, Series A nos. 303 A/B, p. 12, para. 29 and pp. 29-30, para. 27,

respectively).  However, the Commission has already found that, if the

relevant domestic law authorises a superior court to reject an appeal

on the ground that it raises no legal issue of fundamental importance

and offers no prospect of success, it may be sufficient for that court

simply to refer to the provision authorising this procedure (cf.

No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240; see also No. 20335/92,

Dec. 6.9.95; No. 28631/95, Dec. 15.5.96; not published and

No. 29753/96, Dec. 26.11.96, not published).

     In the instant case, the Commission observes that the Federal

Court of Justice, as authorised under S. 554b of the German Civil Code,

refused to accept the applicants' appeal on points of law, stating that

the case did not raise any question of fundamental importance and

offered no prospect of success.

     In these circumstances the Commission, having regard to the

particularities of the proceedings regarding an appeal on points of

law, considers that there is no appearance that the Federal Court of

Justice did not comply with Article 6 para. 1 (Art. 6-1).

b.   As regards the proceedings before the Federal Constitutional

Court, the Commission recalls that such proceedings come within the

scope of Article 6 para. 1 (Art. 6-1) of the Convention, where their

outcome is decisive for civil rights and obligations (cf. Eur. Court

HR, Süßmann v. Germany judgment of 16 September 1996, para. 41, to be

published in Reports 1996).  In the present case the dispute before the

civil courts concerned the applicants' pecuniary liabilities towards

a third person, i.e. civil obligations within the meaning of Article

6 (Art. 6) (cf. Süßmann judgment, loc cit., para. 42).  The complaint

proceedings before the Federal Constitutional Court could have been

directly decisive for the dispute over the applicants' civil

obligations, had the constitutional complaint been accepted for

adjudication and further been successful.  However, the third Section

of the Second Division, sitting as a panel of three judges, had

declined to accept the applicants' constitutional complaint without

giving reasons as to the merits of the submissions made by them.  The

question therefore arises whether these proceedings involved a

"determination" of the applicants' obligations (cf., a contrario,

Süßmann judgment, loc. cit., paras. 43-45).  However, this matter need

not be resolved, as this aspect of the application is anyway

inadmissible.

     The Commission notes that the Federal Constitutional Court

decided to decline acceptance of the applicants' case on the basis of

S. 93b, in conjunction with S. 93a of the Federal Constitutional Court

Act.  In its decision, reference was made to these legal provisions.

     The Commission also considers that, taking into account the

particular features of the constitutional complaint proceedings, there

is no appearance that the Federal Constitutional Court did not comply

with Article 6 para. 1 (Art. 6-1).

     In sum, the Commission finds that the various matters raised by

the applicants, taken individually or cumulatively, did not result in

rendering unfair, for the purposes of Article 6 para. 1 (Art. 6-1), the

civil proceedings against the applicants.

     It follows that the application is manifestly ill-founded within

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

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber