Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26352/95

by G. G.

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 3 January 1995 by

G. G. against Germany and registered on 30 January 1995 under file

No. 26352/95;

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 applicant, a German citizen born in 1917, is a pensioner

residing in Volsheim in Germany.

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

summarised as follows.

Particular circumstances of the case

The applicant owns a house in Nürnberg which in 1983 he let to

the P. couple. In 1989 the tenants complained of deficiencies in the

house. When the repairs were not undertaken, the tenants introduced

an action against the applicant for damages before the Nürnberg

District Court (Amtsgericht).

During these proceedings it transpired that the state of the

house had deteriorated, and in 1991 the applicant introduced two

actions against the tenants before the Nürnberg District Court. The

District Court proceedings were conducted by judge Z.

In the first action, filed on 26 March 1991, the applicant

claimed damages of 11,345 DM. After conducting an oral hearing on

2 December 1991, the District Court on 23 April 1992 partly upheld the

action, awarding the applicant 7,298 DM.

In the second action, filed on 20 November 1991, the applicant

claimed damages of 6,210 DM. The District Court rejected the action

on 14 May 1992, without having conducted an oral hearing as the

applicant had not duly paid the court costs.

Appeals were filed by the tenants against the judgment of

23 April 1992, and by the applicant against the judgment of 14 May

1992. The appeal proceedings were conducted before the Nürnberg

Regional Court (Landgericht).

On 11 August 1992 the case was referred to the single judge

(Einzelrichter) St. of the Regional Court.

A hearing took place before the Regional Court on 28 October

1992. According to the minutes, it was considered that the applicant

had in fact duly paid the court costs for his second action before the

District Court, but that the case need not be sent back to that court.

Rather, both actions could be joined. The minutes also stated that the

hearing was conducted by single judge K., and that judge St. agreed to

the joining of the actions.

By order of 3 November 1992 judge St. invited the parties to an

oral hearing on 24 November 1992. At the hearing, conducted by judge

St., the parties submitted further documents and named a witness to be

heard by the court.

Judge St. then heard altogether 16 witnesses and one expert at

hearings conducted on 9 February, 23 March, 20 April and 15 June 1993.

It appears that judge St. was then transferred to another court.

According to the plan for Distribution of Business (Geschäftsver-

teilung) of the Nürnberg Regional Court, issued by its Presiding

Committee for the years 1992-1994, District judge C., would be sitting

on the bench of the Chamber dealing with tenancy matters in second

instance as from 1 February 1994. The plan referred to the Presiding

Committee's decisions (Präsidialbeschlüsse) of 31 January and

23 February 1994.

On 26 April 1994 a hearing took place which was conducted by

judge C. According to the minutes, judge C. announced the decision for

31 May 1994; the parties "were in agreement with a decision by the

single judge" (i.e. by judge C.).

By letter of 26 April 1994, transmitted to the Regional Court on

3 May, the applicant suggested in respect of the decisions of

28 October and 3 November 1992 that the two proceedings should be

separated and the second action should be referred back to the District

Court. The applicant substantiated his request by pointing out that

judge St. who had obtained an intimate knowledge of the facts of the

case had been transferred to another court; it would be much easier for

the new judge to familiarise himself with the complex facts of the case

if the two cases were again separated.

On 31 May 1994 the Nürnberg Regional Court gave its judgment

which was signed by "C., Judge at the District Court" ("C., Richter am

Amtsgericht"). The judgment partly upheld the applicant's appeal and

ordered the tenants to pay 869 DM plus interests to the applicant.

The applicant filed a constitutional complaint (Verfassungsbe-

schwerde) in which he complained that the Regional Court had not

referred the case back to the District Court, thus depriving him of two

instances which examined the facts of the case. In this respect he

referred to S. 29a of the Code of Civil Procedure (Zivilprozessordnung)

which provides that tenancy disputes shall be dealt with by a District

Court.

In his constitutional complaint the applicant further complained

that judge St. who had participated at various hearings of witnesses

had not issued the judgment. On the other hand, judge C., who had

issued the judgment, had not heard any witnesses. In this respect the

applicant referred to S. 309 of the Code of Civil Procedure according

to which a judgment may only be issued by a judge who has participated

in the hearing leading to the judgment (der dem Urteil zugrunde

liegenden Verhandlung beigewohnt). The applicant also complained that

C., a District Court judge, had signed a judgment of the Regional

Court.

On 7 November 1994 the Federal Constitutional Court (Bundesver-

fassungsgericht) decided not to accept the constitutional complaint for

examination.

Relevant domestic law

According to S. 309 of the Code of Civil Procedure

(Zivilprozessordnung) a judgment may only be issued by judges who

participated at the final hearing leading to the decision (welche der

dem Urteil zugrunde liegenden Verhandlung beigewohnt haben).

According to S. 21e of the Courts' Organisation Act

(Gerichtsverfassungsgesetz), the Presiding Committee of a court

determines before the beginning of the relevant year, inter alia, the

composition of the benches, the replacement of judges and the

allocation of work. These rules can exceptionally be changed during

the year concerned, if this is necessary, inter alia, in view of the

excessive work-load of a judge or bench.

S. 295 of the Code of Civil Procedure provides that a complaint

about a breach of procedure or the form of a procedural act can no

longer be raised if the party has renounced compliance with the

provision (auf die Befolgung der Vorschrift verzichtet).

COMPLAINTS

The applicant raises various complaints under Article 6 para. 1

of the Convention.

1. The applicant complains that, once it was found that he had duly

paid in the costs before the District Court, the Regional Court should

have referred his case back to the District Court. As it did not do

so, he did not have two court instances deciding on the facts of his

case.

2. He further complains that he did not have a judge established by

law. In particular, the judgment of 31 May 1994 of the Nürnberg

Regional Court was signed by judge C. who was a District judge and thus

not entitled to issue a judgment of the Regional Court.

3. The applicant also complains that in the Regional Court

proceedings judge C., who issued the judgment, had not participated at

the hearings of the witnesses. These hearings had been conducted by

judge St. who had personally heard altogether 16 witnesses but had

nevertheless not issued the judgment. The applicant submits that this

was contrary to S. 309 of the Code of Civil Procedure.

4. Finally, in submissions filed with the Commission on 10 October

1996, the applicant also complains of the length of the proceedings

before the Regional Court.

THE LAW

1. The applicant raises various complaints about the Nürnberg

Regional Court and its proceedings. He relies on Article 6 para. 1

(Art. 6-1) of the Convention which states:

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

..., everyone is entitled to a fair ... hearing within a

reasonable time by (a) tribunal established by law."

2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he did not have two court instances deciding on the

facts of his case.

However, according to the Convention organs' case-law, the right

to appeal is not as such guaranteed by the Convention (see Eur. Court

HR, Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11,

p. 14, para. 25).

This part of the application is, therefore, incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 3 (Art. 27-3) of the Convention.

3. The applicant complains that he did not have a tribunal

established by law within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention. In particular, the judgment of 31 May 1994 of the

Nürnberg Regional Court was signed by judge C. who was a District judge

and thus not entitled to issue a judgment of the Regional Court.

According to the Convention organs' case-law, the purpose of the

requirement in Article 6 para. 1 (Art. 6-1) that courts shall be

"established by law" is that the judicial organisation in a democratic

society must not depend on the discretion of the Executive, but that

it should be regulated by law emanating from Parliament. However,

Article 6 para. 1 (Art. 6-1) does not require the legislature to

regulate every detail in this area by formal Act of Parliament if the

legislature establishes at least the organisational framework for the

judicial organisation (cf. Zand v. Austria, Comm. Report 12.10.78, D.R.

15, p. 80; see also Eur. Court HR, Piersack v. Belgium judgment of 1

October 1982, Series A no. 53, p. 16, para. 33).

The present case concerned a tenancy matter in second instance.

According to the plan for the Distribution of Business of the Nürnberg

Regional Court, issued by its Presiding Committee for the years 1992-

1994, District judge C. would be sitting on the bench of the Chamber

dealing with tenancy matters in second instance as from 1 February

1994. The Plan referred to the Presiding Committee's decisions

(Präsidialbeschluss) of 31 January and 23 February 1994.

The Commission considers that the Presiding Committee thereby

exercised its functions under Section 21e of the Courts' Organisation

Act, namely to organise the distribution of cases and the placement of

judges or benches and, if necessary in view of the excessive workload

of a bench, to change in between the rules governing a particular year.

Thus, the decision of the Presiding Committee according to which

District judge C. would decide the applicant's case, was taken on the

basis of the relevant legislation. The Court deciding on the

applicant's case was, hence, a "tribunal established by law" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

This part of the application is therefore manifestly ill-founded

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

4. The applicant complains that in the Regional Court proceedings

judge C., who issued the judgment, had not participated at the hearings

of the witnesses. These hearings had been conducted by judge St. who

had nevertheless not issued the judgment.

It is true that in the present case, judge St. first heard

altogether 16 witnesses, and that, after his transfer to another court,

judge. C. issued the Regional Court's decision on 31 May 1994.

The issue arises, however, whether the applicant, by failing to

complain before the Nürnberg Regional Court that judge C. had not heard

the witnesses, waived his rights under Article 6 para. 1 (Art. 6-1) of

the Convention.

According to the Convention organs' case-law, such a waiver is

not excluded, but it must be established in an unequivocal manner.

Moreover, in the case of procedural rights, as in the present case, the

waiver, in order to be effective for Convention purposes, requires

minimum guarantees commensurate to its importance (see Eur. Court HR,

Pfeifer and Plankl v. Austria judgment of 25 February 1992, Series A

no. 227, pp. 16-17, para. 37). In the Pfeifer and Plankl case, for

instance, it was found that a waiver was not envisaged by law;

moreover, the judges concerned had acted unlawfully, and undue pressure

had been put on the applicant (op. cit., p. 17, para. 38).

In the present case, the parties were made aware at the hearing

of 26 April 1994 that single judge C., who had not heard the witnesses,

would be issuing the judgment on 31 May 1994. According to the

minutes, the applicant was in agreement therewith.

Moreover, in his letter of 26 April 1994, in which the applicant

referred to judge St.'s transfer to another court, he did not complain

that judge C. had not heard the witnesses. Rather, he suggested that

for practical purposes the two cases pending before the Regional Court

should be separated.

The present case also differs from the above cited Pfeifer and

Plankl case in that S. 295 of the Code of Civil Procedure expressly

envisages the possibility of a waiver of an alleged breach of rules of

procedure. Moreover, no undue pressure was placed on the present

applicant to waive his rights. Finally, judge C. had not acted

unlawfully. On the one hand, the Commission has just found that the

Nürnberg Regional Court deciding on the applicant's case was a

"tribunal established by law." On the other hand, S. 309 of the Code

of Civil Procedure was complied with in that judge C. participated in

the final hearing on 26 April 1994 before issuing the judgment.

In these circumstances, the applicant could have been expected

to complain that judge C. had not heard the witnesses, if he attached

importance to it. As he failed to do so, it may be considered that he

unequivocally waived his rights under Article 6 para. 1 (Art. 6-1) of

the Convention.

This part of the application is, therefore, manifestly ill-

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

Convention.

5. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention of the length of the proceedings.

According to Article 26 (Art. 26) of the Convention, the

Commission may only deal with a case "within a period of six months

from the date on which the final decision was taken".

In the present case, the Federal Constitutional Court gave its

final decision on the case on 7 November 1994. The complaint at issue,

however, was only introduced before the Commission on 10 October 1996.

The remainder of the application has, therefore, been introduced

out of time, and it must be declared inadmissible within the meaning

of Article 27 para. 3 (Art. 27-3) 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

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G.G. v. GERMANY

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