Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21977/93

by S.A.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 31 August 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 May 1993 by S.A.

against Germany and registered on 4 June 1993 under file No. 21977/93;

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 is a German citizen born in 1932 and living in

Recklinghausen. He complains about the denial of unemployment aid

(Arbeitslosenhilfe) and about proceedings before the Social Court

relating to his claim for unemployment aid.

It follows from his statements and the documents submitted that

in 1973 the applicant was paid unemployment benefit (Arbeitslosengeld)

and, as from 1974 onwards, unemployment aid (Arbeitslosenhilfe).

On 27 May 1977 the Labour Office (Arbeitsamt) in Recklinghausen

ordered that unemployment aid be no longer paid to the applicant as he

had failed to co-operate.

An action against this decision was rejected by the Social Court

(Sozialgericht) in Gelsenkirchen on 28 October 1977.

The applicant lodged an appeal. During the appeal proceedings the

labour authorities again ordered suspension (Sperrzeit) of payment of

unemployment aid because the applicant had not responded to their offer

of employment.

The appeal was rejected by the Regional Social Court and on

4 September 1979 the Federal Social Court (Bundessozialgericht) partly

dismissed a further appeal on points of law and partly granted the

applicant's appeal and quashed the decisions complained of, namely the

order of 27 May 1973 withdrawing unemployment aid.

The applicant's constitutional complaint and his request for

retrial relating to the unsuccessful part of his social action remained

to no avail.

Subsequently the Labour Office paid the applicant in 1980

unemployment aid for certain periods in 1977. It refused, however,

further payments.

The applicant again lodged an action, the main part of which was

dismissed by the Social Court on 3 June 1985. On 2 December 1985 the

Social Court rejected the applicants request to continue the

proceedings. The Court considered that the first instance proceedings

had been terminated by the judgment of 3 June 1985 and that there were

no reasons to amend this judgment.

The applicant then lodged an appeal against the two decisions of

3 June 1985 and 2 December 1985. On 23 November 1988 the Regional

Social Court partly granted the appeal and dismissed the remainder.

On 3 February 1989 the applicant requested the Regional Social

Court to amend its judgment. Reasons for this request were submitted.

On 9 June 1989 the Regional Social Court rejected the applicant's

request for an amendment of its judgment. An appeal on points of law

against this decision was rejected by the Federal Social Court as being

inadmissible on 25 July 1989.

On 22 February 1989 a lawyer practising in Recklinghausen,

Mr. W., lodged an appeal on points of law in behalf of the applicant

against the judgment of 23 November 1988. After several extensions of

the time-limit for the submission of the grounds of appeal, such

grounds were submitted on 20 July 1989. They comprised more than 100

typewritten pages and were signed by lawyer W.

On 9 June 1992 the Federal Social Court dismissed the appeal on

points of law as being inadmissible. It found that W. had only signed

but not prepared the grounds for the applicant's appeal on points of

law. The Court found that in view of the contents, its outward

appearance and the manner of formulation it was clear that the

applicant himself had elaborated the brief. Also its unusual length

proved this. On the other hand it could not be found that the lawyer

had independently checked, examined and evaluated the text elaborated

by the applicant. This followed inter alia from the fact that the text

contained numerous irrelevant and amateurish arguments. The Court

admitted that it was often difficult for lawyers to insist with their

clients on eliminating irrelevant arguments in their submissions to the

Court, but such difficulties did not justify lawyers in leaving the

drafting of briefs exclusively to their clients and in limiting

themselves to signing the papers written by their clients. As this was

exactly what the applicant and his lawyers had done, the appeal had to

be rejected as being inadmissible.

The applicant then lodged a constitutional complaint which was

rejected by a group of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 2 November 1992.

COMPLAINTS

The applicant considers that he was denied a fair hearing and

that his case was not decided by independent and impartial judges. He

alleges a violation of Article 6 para. 1 of the Convention.

THE LAW

The applicant has complained that his appeal against the decision

of the Regional Social Court dated 23 November 1988 has been declared

inadmissible because it had not been duly prepared and signed by a

lawyer.

While Article 6 (Art. 6) does not in itself grant access to a

Court of Appeal, the Commission has nevertheless recognised that if

under domestic law the possibility of an appeal exists the requirements

of Article 6 (Art. 6) have, according to the circumstances, also to be

observed in the appeal proceedings. On the other hand the Commission

has already decided that this provision does not prevent Contracting

States from making regulations governing the access to an appellate

court (cf. No. 8407/78 Dec. 6.5.80, D.R. 20, p. 179).

Regulations concerning the presentation of grounds for an appeal

by a lawyer undoubtedly serve the purpose of assuring a proper

administration of justice.

In the applicant's case it cannot be found that the regulation

in question prevented the applicant from lodging an appeal in a proper

manner. However, according to the findings of the Federal Social

Court, it followed from the contents, the outward appearance and the

manner of formulation of the grounds for appeal submitted by the

applicant's lawyer that the applicant had clearly prepared the brief

in question himself. The court furthermore found that the text

contained numerous irrelevant and amateurish arguments which showed

that the applicant's lawyer had not independently checked, examined or

evaluated the grounds for appeal. Rather they had been prepared by the

applicant and the lawyer had limited himself to signing the document.

The applicant has not shown that these findings of the Federal

Social Court are arbitrary or unjustified in the circumstances of his

case.

An examination of his case by the Commission of the present

complaint does not therefore disclose any appearance of a violation of

the rights and freedoms set out in the Convention and in particular in

Article 6 (Art. 6).

It follows that 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 unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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S.A. v. GERMANY

S.A. v. GERMANY

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