Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19458/92

by D. Ltd.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 13 October 1993, 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

G.B. REFFI

B. CONFORTI

N. BRATZA

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 5 December 1991

by D. Ltd. against Germany and registered on 30 January 1992 under file

No. 19458/92;

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 company is the German branch of an English limited

liability company. The parent company is registered in London. The

German branch is domiciled at Griesheim. Its managing director is

Mr. Knut Stache.

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

summarised as follows.

In 1986 the applicant company brought an action for damages

against the Federal Republic of Germany represented by its Minister of

Defence in connection with negotiations of a contract. The action was

dismissed by the Koblenz Regional Court (Landgericht) on 9 July 1987.

The Court found that contrary to the applicant's allegation the

business discussions between the parties had not reached the stage

where any obligations on the part of the defending party were created.

A written note on a conversation which was held on 9 December 1982

could not be interpreted as to constitute a preliminary agreement

(Vorvertrag).

The applicant's appeal was rejected by the Koblenz Court of

Appeal (Oberlandesgericht) on 18 October 1989. This Court heard three

witnesses and likewise found that there was no evidence that the

parties had reached a preliminary agreement on 9 December 1982.

On 5 February 1991 the Federal Court (Bundesgerichtshof) refused

to admit the applicant's appeal on points of law (Revision) stating

that the matter did not raise any important issue nor offered any

prospect of success.

The applicant company then lodged a constitutional complaint

which was rejected by the Federal Constitutional Court

(Bundesverfassungsgericht) on 2 October 1991 as being partly

unsubstantiated and therefore inadmissible and partly as offering no

prospect of success. In the latter respect the Court stated that the

judgements did not disclose any arbitrariness and there was nothing to

show that the applicant had been denied a fair hearing.

The applicant company brought a further action against a lawyer

claiming repayment of certain lawyer's fees. The action was dismissed

by the Koblenz District Court on 17 March 1988. The Court found that

the defendant lawyer had first accepted to represent the applicant

company in appeal proceedings in the above-mentioned matter, but, after

having examined the case file, advised the company that the intended

appeal did in his opinion not offer prospects of success. He therefore

refused to represent the company in the appeal proceedings which were

carried through contrary to his advice. The Court considered that in

these circumstances the defendant lawyer had acted correctly and that

a fee was due to him for the examination of the case.

The applicant company's requests for the appointment of an

official counsel (Notanwalt) and for leave to appeal out of time was

rejected by the Koblenz Regional Court on 31 May 1988. The Court found

that the District Court's judgment had been served on 21 March 1988.

Therefore an appeal had to be lodged before 21 April 1988. However,

the applicant company had not made submissions before 16 May 1988 and

had not indicated any valid excuse for the non-observance of the

time-limit for lodging the appeal. In any event the appeal would have

been inadmissible as the value of claim did not exceed the minimum

amount required by law. It was true that the District Court had

decided in written proceedings and that an appeal would lie if written

observations of the appellant had not been taken into account by the

trial court. There was however nothing to show that the applicant

company's observations had not been considered by the District Court.

The applicant's constitutional appeal was rejected by the Federal

Constitutional Court on 29 August 1988 as being clearly ill-founded.

The Court considered that the decisions complained of did not disclose

any appearance of a violation of the applicant company's right to be

heard. It was ordered to pay a fee in the amount of 500DM.

COMPLAINTS

The applicant company complains under Article 6 of the Convention

of a denial of a fair hearing in the above civil proceedings.

It alleges that two of the witnesses who were heard in the

proceedings concerning the alleged claim for damages against the

Federal Republic had made statements in the civil proceedings which

contradicted statements which they had made previously in criminal

proceedings. It maintains that there was sufficient evidence showing

that its action was well-founded. It concludes that it was denied a

fair hearing because otherwise its action would not have been

dismissed. In this context it is also alleged that certain submissions

had not been considered by the appeal court.

With regard to the proceedings against the lawyer the applicant

company alleges that it had not been communicated certain submissions

of the adverse party.

In view of the fact that the last decision in this particular

matter was given by the Constitutional Court on 29 August 1988 the

applicant company argues that it had been justified further to await

the outcome of the action against the Federal Republic of Germany. Had

it won this action it would have recovered all lawyer's fees and

therefore the outcome of the action against the lawyer would have been

of no importance for the applicant company.

THE LAW

1. The applicant company complains of the dismissal of its civil

action for damages against the Federal Republic of Germany and also of

the court proceedings concerned. It invokes Article 6 (Art. 6) of the

Convention.

With regard to the judicial decision of which the applicant

complains, the Commission recalls 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 may 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 established

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 this case the applicant company also complains

of a violation of its right to a fair hearing, guaranteed by Article

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

However, the Commission cannot find that in the proceedings in

question the applicant company was not given sufficient and adequate

opportunity to submit its case. It can furthermore not find that the

decisions given by the German courts disregard vital evidence or

pertinent arguments so as to amount to an arbitrary denial of justice.

It follows that this part of the application is manifestly

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

Convention.

2. The applicant company further complains of the civil proceedings

it had instituted against a lawyer invoking again the right to a fair

trial under Article 6 (Art. 6) of the Convention.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision, as Article 26 (Art. 26) of the Convention

provides that the Commission "may only deal with the matter ... within

a period of six months from the date on which the final decision was

taken".

In the present case the decision of the Federal Constitutional

Court which was the final decision regarding the subject of this

particular complaint, was given on 29 August 1988, whereas the

application was submitted to the Commission on 5 December 1991, that

is, more than six months after the date of this decision. Furthermore,

an examination of the case does not disclose the existence of any

special circumstances which might have interrupted or suspended the

running of that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3

(Art. 27-3) 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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D. LTD v. GERMANY

D. LTD v. GERMANY

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