Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20950/92

by M. P.

against Germany

The European Commission of Human Rights sitting in private on

28 June 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 June 1992 by

M. P. against Germany and registered on 16 November 1992 under file

No. 20950/92;

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 1937 and living in

Munich. She is represented by Mr. P. Kloer, a lawyer practising in

Munich.

The facts of the present case, as submitted by the applicant and

which may be deduced from the documents lodged with the application,

may be summarised as follows:

1. The applicant is the owner of inherited real estate which is

leased to an Allotment Garden Association (Kleingartenverein) in

Munich. The lease was concluded for the period 1 January 1955 until

31 December 1979. It concerned 44,271 square metres of real estate.

The rent was 0.10 DM per square metre, per year.

By letter of 22 November 1976 the applicant denounced the lease

with effect from 31 December 1979. The tenant association disputed the

applicant's right to denounce the lease. Consequently the applicant

brought an action for the eviction of the tenant. She was, however,

unsuccessful at first and second instance.

On appeal on points of law (Revision) the Federal Court

(Bundesgerichtshof) decided on 24 May 1985 (V ZR 11/84) to adjourn the

proceedings in order to submit the question to the Federal

Constitutional Court (Bundesverfassungsgericht) whether or not Section

16 (3) of the Federal Allotment Garden Act (Bundeskleingartengesetz)

was compatible with the right to the protection of property, as

guaranteed by Article 14 of the Basic Law (Grundgesetz). Section 16

provides that the validity of certain leases be extended until 31 March

1987. The proceedings before the Federal Constitutional Court were

still pending when the application was introduced.

2. In 1980 the applicant brought another action against the

Allotment Garden Association requesting a higher rent, from

1 January 1980 until 31 March 1983, for the amount of DM 454,287.43.

The action was granted by the Munich Regional Court (Landgericht) on

30 August 1990. That court considered that the lease had to be adapted

to the new situation, as the former price regulation was no longer

valid. The court considered a rent of DM 3.25 per square metre, per

year, to be equitable.

This judgment was partly quashed on appeal by the Munich Court

of Appeal (Oberlandesgericht) on 17 May 1991. The action was dismissed

in respect of a claim for DM 239,560.50. To this extent the action was

considered to be time-barred.

The applicant's appeal on points of law (Revision) was rejected

on 30 January 1992 by the Federal Court on the grounds that it neither

raised any issues of general importance, nor offered any prospects of

success.

The applicant's subsequent constitutional complaint was rejected

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

7 May 1992 as offering no prospects of success. It is stated in this

decision that the judgements complained of did not disclose any

violation of constitutional law. The finding of the appellate court

that the applicant's claim was partly time-barred was, from the point

of constitutional law, unobjectionable. The fact that a constitutional

complaint relating to provisions of the Allotment Garden Act was still

pending was not a reason not to apply the provisions on time-limits

within which certain claims had to be raised. This is because the

constitutional proceedings in question did not prevent the applicant

from pursuing her claims before the civil courts. In fact her present

action, although unsuccessful, showed that the civil courts did not

reject the claim for the reason that a constitutional complaint was

pending relating to the Allotment Garden Act.

The Constitutional Court further stated that the possible

unconstitutionality of certain provisions of the Allotment Garden Act

would not justify considering the present civil claims of the applicant

under Article 14 of the Basic Law. Therefore the more generous

time-limit of thirty years within which such claims, based on alleged

violations of property rights, have to be raised did not apply.

COMPLAINTS

The applicant complains about the length of the proceedings

before the Federal Constitutional Court as regards her original civil

action which was adjourned by the Federal Court pending the outcome of

the Constitutional Court proceedings.

Furthermore, she complains that the appellate courts wrongly

refused to consider her second claim based on a violation of her

constitutional right to protection of property, which would have had

the benefit of a thirty year limitation period. In this respect she

alleges a violation of Article 1 of the Protocol No. 1, read in

conjunction with Article 14 of the Convention.

THE LAW

1. The applicant complains about the length of the first set of

civil proceedings which she instituted in 1980 in order to have a

tenant evicted. These proceedings have lasted for about fourteen years

and are apparently still pending.

Article 6 para. 1 (Art. 6-1) of the Convention guarantees, inter

alia, a fair hearing of civil claims within a reasonable time.

The Commission considers that a full examination of this aspect

of the case can only be made after its communication to the respondent

Government, and in the light of the parties' written observations on

admissibility and merits.

2. The applicant also complains that part of her second civil action

was dismissed on the ground that it was time-barred.

The Commission recalls that with regard to the judicial decisions

of which the applicant complains, its only task, in accordance with

Article 19 (Art. 19) of the Convention, 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. 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 the applicant invokes Article 1 of Protocol No. 1

(P1-1) and Article 14 (Art. 14) of the Convention, which guarantee the

right to property and freedom from discrimination respectively. The

Commission notes, however, that, according to the Federal

Constitutional Court, the applicant's claim could not be based on

Article 14 (Art. 14) of the German Basic Law and, consequently, the

civil courts did not violate constitutional law by not applying the

thirty year time-limit within which such claims may be raised. There

is nothing to show that this reasoning is in any way arbitrary,

discriminatory or contrary to existing case-law.

The Commission concludes that this part of the application does

not disclose any appearance of a violation of the provisions invoked

by the applicant. It follows that the applicant's second complaint is

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

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN the examination of the applicant's complaint

about the length of the first civil action;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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M.P. v. GERMANY

M.P. v. GERMANY

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