Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21634/93

by R. H.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 19 December 1992

by R. H. against Germany and registered on 7 April 1993 under file No.

21634/93;

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

of Procedure of the Commission;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 1 December 1993 to communicate the

application;

- the observations submitted by the respondent Government on

14 March 1994 and the observations in reply submitted by the

applicant on 21 June 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1931 in Bucharest and

living in Offenbach.

He complains of the fairness of civil proceedings.

It follows from the applicant's statements and the documents

submitted that on 2 March 1986 the applicant participated in a lottery

game called "Race Quintet" organised by the public Hessian lottery

administration. The lottery game consisted in predicting the first

three winners in two horse races.

The applicant placed a bet on trotting races A and B. In race

A fifteen horses started and ten reached the winning post; the first

four positions were in the following order: 15-2-6-5. Subsequently

horse no. 6 was disqualified for having galloped when passing the

winning post. The applicant had predicted the winners in the following

order: 15-2-5.

The lottery administration invoked however Section 12 (8) of its

General Participation Conditions which provides:

"If a race has to be cancelled for reasons of force majeure or,

if less than ten horses start or reach the winning post, the

order of the winners among the 15 regular starters is determined

by a draw of lots."

A draw of lots had in fact been carried out and resulted in

another number combination than that of the applicant.

On 9 May 1986 the applicant brought an action against the State

of Hessia, represented by the Hessian Lottery Administration, claiming

a lottery prize in the amount of DM 314,428. At the same time he

requested to be granted legal aid.

On 23 September 1986 legal aid was denied by the Regional Court

(Landgericht) in Wiesbaden on the grounds that the applicant's wife was

a dentist and could advance the court costs for the applicant. In

addition it was stated that the action offered no prospect of success.

In this respect the court referred to Section 12 (8) of the defendant's

General Participation Conditions which it considered had rightly been

applied for the reason that only nine horses had reached the winning

post while the disqualification of the tenth horse for having galloped

was justified.

On 5 November 1986 the applicant was requested to pay the advance

on court fees.

On 27 November 1986 the applicant lodged an appeal (Beschwerde)

against the denial of legal aid. This appeal was rejected on

4 March 1987 by the Court of Appeal (Oberlandesgericht) in Frankfurt

am Main. This court only based its decision on the reasoning that the

action offered no prospect of success.

On 23 March 1987 the applicant was again reminded to pay the

advance on court fees. He complied on 23 April 1987.

Subsequently the action was served on the defendant party on

30 April 1987.

On 24 September 1987 the action was dismissed by the Regional

Court in Wiesbaden.

The court considered that the drawing of the winning numbers by

lots was justified in accordance with Section 12 (8) of the defendant's

General Participation Conditions because out of the ten horses which

had reached the winning post, one had to be disqualified. Contrary to

the applicant's view, the disqualified horse could not be considered

among those who had reached the winning post. Consequently, the

defendant had correctly applied Section 12 (8) of the General

Participation Conditions as without the disqualified horse less than

ten horses had reached the winning post.

The applicant lodged an appeal. On 16 February 1989 the Court

of Appeal in Frankfurt am Main quashed the first instance court's

judgment and granted the action. This court considered that the action

had been lodged on time and was not foreclosed in accordance with

Section 19 of the defendant's General Participation Conditions which

provides for a thirteen week time-limit for the lodging of an action.

The court considered that the delays caused by the legal aid

proceedings could not be imputed to the applicant, in particular as

legal aid had not been refused for lack of "poverty" but for lack of

chances of success. Only after the termination of the legal aid

proceedings had the applicant therefore been obliged to advance the

court costs on which notification of the action to the defendant party

was dependent. This interpretation also did not affect the interests

of the defending party as the applicant's request for legal aid had

been communicated to them and they knew thereby that the applicant

intended to bring an action.

The court further considered that the provision of Section 12 (8)

of the defendant's General Participation Conditions was unclear and

surprising for the defendant's clients and therefore not applicable.

There were, in the court's opinion, no reasons not to consider the

numbers of the first three winning horses for the purpose of

determining who had won the lottery.

The defendant then lodged an appeal on points of law, arguing

that the applicant's action was time-barred.

On 21 March 1991 the Federal Court (Bundesgerichtshof) quashed

the Appellate Court's decision and confirmed the first instance court

judgment. This court left the question open whether the defendant

could rely on Section 12 (8) of its General Participation Conditions.

It considered that in any event the action had been brought out of time

as under Section 19 of the General Participation Conditions a

time-limit of 13 weeks had to be respected as of the date of the

disputed horse race. The court considered that the applicant had

accepted the General Participation Conditions which were referred to

on all gambling vouchers. These conditions had been publicised in an

official bulletin (Staatsanzeiger) of Hessia. They were also available

in all gambling halls. The provision setting out the time-limit could

not be considered to be surprising or inequitable. The defendant had

justified interest in having disputes settled rapidly.

Consequently, the applicant should have brought his action before

2 June 1986. It was true that the applicant had lodged his action

before this date, but in accordance with Sections 253 (1) and 270 (3)

of the Code on Civil Proceedings (ZPO) an action could only be

considered to have been formally lodged when it was also communicated

to the defendant party within a reasonable delay (demnächst). In the

applicant's case communication of the action was not effected before

30 April 1987. Even considering that the applicant first requested

legal aid and that legal aid was denied to him, he could not be

considered to have pursued the matter with the necessary diligence.

His appeal against denial of legal aid had been rejected on

4 March 1987 and the decision had been served on him on 17 March 1987.

On 23 March 1987 the applicant had been reminded of his obligation to

pay an advance on court costs. He had received this reminder on

27 March 1987. On 2 April 1987 he had replied that he was still

looking for a person willing to finance the proceedings and to share

the financial risks of them with him. Eventually the advance on court

costs in the amount of DM 2,113 was paid on 23 April 1987.

The court also pointed out that the applicant had appealed

against the order of 23 September 1986 (communicated on 1 October 1986)

denying legal aid on 28 November 1986, that is more than 8 weeks later.

However, reasonably he could have been expected to lodge the appeal

within two weeks even though no formal time-limit had to be respected.

In all these circumstances the Federal Court considered that the

defendant could invoke Section 19 of its General Participation

Conditions and the action was time-barred.

On 10 June 1992 a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) rejected the

applicant's constitutional complaint as offering no prospect of

success.

Insofar as the applicant had complained that the Federal Court

disregarded his allegation that the General Participation Conditions

are not available in all gambling halls the Constitutional Court

remarked that the ordinary court did not take into consideration

irrelevant statements of a party. As the Federal Court had stated that

the General Participation Conditions were referred to in the gambling

vouchers its decision was not based on the finding that these General

Participation Conditions were available in all gambling halls.

The Constitutional Court further considered that the right of

access to a court was not affected by the thirteen weeks time-limit

applied in the applicant's case.

Furthermore it was not arbitrary that the Federal Court

considered that the applicant could and should have lodged his appeal

against the denial of legal aid within a two weeks time-limit.

COMPLAINTS

The applicant considers that his right to a fair hearing was

disregarded in the above proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 December 1992 and registered

on 7 April 1993.

On 1 December 1993 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

14 March 1994. The applicant replied on 21 June 1994, after an

extension of the time-limit fixed for that purpose.

The applicant's request to be granted legal aid was rejected by

the Commission (First Chamber) on 17 May 1994.

THE LAW

The applicant complains of the dismissal of his civil action.

With regard to the judicial decisions of which the applicant

complains, the Commission first points out 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 in 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. The Commission refers, on this point, to its

constant case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp.

222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No.

7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

It is true that in the present case the applicant alleges a

violation of his right to a fair trial as guaranteed by Article 6

(Art. 6) of the Convention. He considers that in light of the fact

that legal aid was denied to him on the ground that his action offered

no chances of success, while the judgment given in his favour on

16 February 1989 by the Court of Appeal proves the contrary, it was

unfair of the Federal Court to decide that he had not pursued the legal

aid proceedings with adequate diligence.

The respondent Government argue that the Federal Court's

interpretation of the notion "within a reasonable delay" (demnächst)

as employed in Section 270 (3) of the Code on Civil Proceedings (ZPO)

was not in any way arbitrary but conform with jurisprudential

principles. It also took into account the particularities of the

present case in that the Federal Court rightly considered that the

applicant could and should have appealed against the Regional Court's

decision of 23 September 1988 denying legal aid within two weeks while

in fact he did not file the appeal more than eight weeks later. The

Government point out that the Federal Constitutional Court found the

Federal Court's decision unobjectionable from the point of view of

constitutional law.

The Commission likewise considers in these particular

circumstances that it cannot be found that the applicant was denied a

fair hearing by the domestic courts dealing with the matter. Even

taking into account that the applicant had to take a financial risk to

pursue his request for legal aid in second instance, this risk was not

of such importance as to justify a delay of reflection of more than two

months for the applicant's decision whether or not to lodge an appeal.

It follows that there is no appearance of a violation of

Article 6 (Art. 6) of the Convention and the application has to be

rejected as being 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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R. H. v. GERMANY

R. H. v. GERMANY

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