Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32009/96

by Thea REUTER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 May 1991 by

Thea REUTER against Germany and registered on 25 June 1996 under file

No. 32009/96;

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 applicant, born in 1926, is a German national and resident

in Simmern.

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

summarised as follows.

In 1990 and 1991 the applicant, who owns a house where she lives

in the attics, unsuccessfully instituted eviction proceedings against

Ms. S., the tenant of the apartment on the ground floor of her house.

In 1994 Ms. S. filed an action with the Simmern District Court

(Amtsgericht) against the applicant, claiming a declaratory judgment

to the effect that the renewed notice of termination of her tenancy

contract by the applicant was invalid. The applicant, represented by

counsel, again claimed the eviction of Ms. S.

On 6 April 1995 the Simmern District Court decided that the

tenancy contract between the applicant and Ms. S. had to be continued

for an indefinite period. The Court, having regard to S. 564b and

S. 556a para. 1 of the Civil Code (Bürgerliches Gesetzbuch), found

that, even assuming that the applicant had shown that she needed the

apartment for her own accommodation, Ms. S. could claim the

continuation of the tenancy on the ground that her eviction would

amount to an undue hardship. The Court, taking into account Ms. S.'s

state of health, as established in the previous proceedings and

confirmed in a recent medical certificate, considered that her

interests in staying in the apartment outweighed the applicant's

interests. The Court also observed that the applicant could have

previously moved into an apartment on the first floor, but had

preferred to rent it to third persons.

The rent legislation forms part of the Civil Code (SS. 535

to 580a), which contains rules on the protection of tenants. According

to S. 554a para. 1, the tenant is entitled to object to the termination

of the tenancy and claim its continuation, if such termination of the

tenancy would amount, for the tenant himself or his family, to a

hardship which is not justified, having due regard to the landlord's

legitimate interests. S. 564a para. 1 provides that the landlord can

only terminate a tenancy if he has a legitimate interest to do so. S.

564a para. 2 mentions, inter alia, the example that the landlord needs

the accommodation concerned for his own housing of the housing of one

of his family members.

On 7 November 1995 the Bad Kreuznach Regional Court (Landgericht)

dismissed the applicant's appeal. It confirmed the reasoning of the

District Court. It weighed in detail the applicant's disadvantageous

living situation against the risk that, on account of her poor health,

the then 86-year-old tenant, who had lived in the said apartment for

33 years, would become a person needing care in case of her eviction.

On 18 January 1996 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde).

COMPLAINTS

The applicant complains about the German court decisions

dismissing her claims for an eviction of her tenant Ms. S. She invokes

Articles 2, 5, 6 and 8 of the Convention.

THE LAW

1. The applicant's complaint relate to the refusal, by the German

courts, to permit the termination of a tenancy contract with one of the

applicant's tenants, and the eviction of this tenant.

2. The Commission has first examined the applicant's complaint under

Article 8 (Art. 8) of the Convention.

Article 8 (Art. 8), so far as relevant, provides as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society ... for the

protection of the rights and freedoms of others."

The Commission recalls that, although the object of Article 8

(Art. 8) is essentially that of protecting the individual against

arbitrary interference by the public authorities, it may also give rise

to positive obligations, particularly the obligation to ensure respect

for private and family life even in the sphere of interpersonal

relations. In this matter as in others a fair balance must be struck

between the general interest and the interests of the people concerned

(cf. Eur. Court HR., Velosa Barreto v. Portugal judgment of 21 November

1995, para. 23, to be published in Series A no. 334).

The Commission recognises that the decisions complained of

prevented the applicant from living in another apartment of the house

owned by her, namely the apartment on the ground floor rented by Ms. S.

However, effective protection of respect for private and family

life does not go so far as to place the State under an obligation to

give a landlord or landlady the right to recover possession of a rented

house or apartment on request and in any circumstances (cf. Velosa

Barreto judgment, para. 24, loc. cit.). The legislation applied by the

German courts pursues the protection of the rights of others, namely

the social protection of tenants.

Both the Simmern District Court and the Bad Kreuznach Court of

Appeal found that, even assuming that the applicant had shown that she

needed the apartment in order to live there, the tenant Ms. S. could

claim the continuation of the tenancy on the ground that her eviction

would amount to an undue hardship. In this respect, the Courts

carefully weighed the applicant's and her tenant's conflicting

interests. Both courts, on the basis of medical certificates, reached

the conclusion that the interests of the then 86-year-old tenant, on

account of her poor health, outweighed the interests of the applicant

as owner of the house concerned.

The applicant's submissions do not disclose any indication that

the German courts acted arbitrarily or unreasonably or failed to

discharge their obligation to strike a fair balance between the

respective interests.

Accordingly, there is no indication of a breach of Article 8

(Art. 8) of the Convention.

It follows that the applicant's complaint under Article 8

(Art. 8) is manifestly ill-founded within the meaning of Article 27

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

3. The Commission, considering the applicant's legal position as the

owner of the house in question, has further examined her complaint

under Article 1 of Protocol No. 1 (P1-1).

This provision reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission finds that the restriction on the applicant's

right to terminate her tenant's lease constitutes control of the use

of property within the meaning of the second paragraph of Article 1 of

Protocol No. 1 (P1-1), which pursued a legitimate social policy aim.

Moreover, the Commission finds that the impugned court decisions, taken

in accordance with the legislation on the protection of tenants,

complied with the conditions laid down in Article 1 of Protocol No. 1

(P1-1) (cf., mutatis mutandis, Eur. Court HR., Mellacher v. Austria

judgment of 19 December 1989, Series A no. 169, pp. 25-26, para. 45;

Spadea and Scalabrino v. Italy judgment of 28 September 1995, Series

A no. 315-B, pp. 25-27, paras. 29-41; Velosa Barreto judgment, loc.

cit. paras. 35-37). In the circumstances of the present case, the

Commission, having regard to its above findings under Article 8

(Art. 8) of the Convention, considers in particular that the German

courts duly balanced the interests of the parties to the dispute before

them. Consequently, regard being had to the legitimate aim pursued, the

court decisions in question were not disproportionate in view of the

margin of appreciation permitted under the second paragraph of this

provision. Accordingly, there is no appearence of a breach of Article 1

of Protocol No. 1 (P1-1).

It follows that the part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2).

4. The Commission further finds that there is no appearance of a

violation of the other Convention rights invoked by the applicant,

namely her rights under Articles 2, 5 and 6 (Art. 2, 5, 6). In

particular, there is nothing to show that the applicant could not duly

present her arguments in the court proceedings or that the proceedings

were otherwise unfair, contrary to Article 6 (Art. 6). It follows that

this part of the application is also manifestly ill-founded within the

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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