Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13550/88

by Walter SCHRAFT

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 9 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 18 January 1988

by Walter SCHRAFT against the Federal Republic of Germany and registered

on 26 January 1988 under file No. 13550/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows:

The applicant, born in 1931, is a German national and resident

at Renningen.

His previous Applications No. 9524/81 concerning court

proceedings in 1981 and 1982 and No. 13342/87 concerning the challenge

of a local building plan were declared inadmissible by the Commission

on 4 October 1982 and 4 July 1988 respectively.

The present application concerns two different sets of

proceedings.

I

In 1983 the applicant raised objections to the request of the

Renningen Water Board (Wasserversorgungsgruppe) for permission to

produce ground water from a well at Renningen. He submitted that the

envisaged production would prejudice his estate at a distance of 600m.

The Böblingen Administrative Office (Landratsamt) competent to grant

the permission concerned, having regard to a technical expert opinion

of the Regional Geological Authority (Geologisches Landesamt), granted

the permission on 27 September 1984. The applicant's appeal

(Widerspruch) remained unsuccessful.

On 18 June 1986 the Stuttgart Administrative Court

(Verwaltungsgericht), having held an oral hearing, dismissed the

applicant's action to revoke the permission. The Court found in

particular that the applicant had failed to prove that the production

of ground water from the well in question could cause damage to his

estate. The Court had, in this respect, regard to the technical

expert opinion of 1984, a supplementary opinion given by an official

expert (Amtssachverständiger) and the expert's further explanations at

the hearing of 18 June 1986.

On 31 October 1986 the Baden Wuerttemberg Administrative Court

of Appeal (Verwaltungsgerichtshof), having regard to the parties'

written submissions, unanimously dismissed the applicant's appeal

(Berufung). It considered that neither the taking of further

evidence nor an oral hearing was necessary. The Court found in

particular that the fact that the expert's submissions at the hearing

had not been recorded did not render the proceedings unfair on the

ground that the applicant had been able to comment thereupon at the

hearing and the Administrative Court had delivered its judgment at the

close of the hearing. Moreover, the Court considered that the

applicant, having no expert knowledge, had failed to substantiate his

objections to the expert opinion. The Court did not grant leave to

appeal on points of law (Revision).

On 20 January 1987 the Baden Wuerttemberg Administrative Court

of Appeal dismissed the applicant's challenge of its judges. The

Court of Appeal found that the statement in its decision concerning

the applicant's expert knowledge obviously did not concern his

intelligence in general.

On 6 April 1987 the Federal Administrative Court (Bundes-

verwaltungsgericht) dismissed the applicant's request for leave to

appeal (Nichtzulassungsbeschwerde).

On 27 July 1987 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) concerning the main administrative

court proceedings as offering no prospect of success. On 27 August 1987

it refused to admit his constitutional complaint as regards the

decision of 20 January 1987 partly as being inadmissible, partly as

offering no prospect of success.

II

On 26 January 1983 the Leonberg Tax Office (Finanzamt)

dismissed the applicant's request to have the purchase tax on his real

estate reduced retroactively.

On 12 November 1986 the Baden Wuerttemberg Tax Court

(Finanzgericht) dismissed the applicant's action concerning his

purchase tax. On 22 July 1987 the Federal Tax Court (Bundesfinanzhof)

dismissed the applicant's request for leave to appeal on points of law

(Nichtzulassungsbeschwerde).

On 5 November 1987 the Federal Consitutional Court refused to

admit the applicant's constitutional complaint of the tax proceedings

as offering no prospect of success.

COMPLAINTS

1. The applicant complains that the decisions of the German

authorities concerning the permission to produce ground water were

incorrect and that the court proceedings concerned were unfair. He

considers in particular that he could not properly comment upon the

expert's opinion which, due to a technical problem, had not been

recorded. The Stuttgart Administrative Court had, therefore, not been

able properly to assess the evidence in the present case. He also

complains that he had no oral hearing before the Baden Wuerttemberg

Administrative Court of Appeal. He invokes Articles 6 para. 1, 8 and

14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

2. The applicant also complains under Article 6 para. 1 of the

Convention that the decision taken in the tax proceedings were not

correct and that the proceedings concerned were unfair.

THE LAW

1. The applicant complains under Articles 6 para. 1, 8 and 14

(Art. 6-1, 8, 14) of the Convention and Article 1 of Protocol No. 1

(P1-1) to the Convention that the Administrative Court decisions

concerning the Water Board's permission to produce ground water were

incorrect and that he had no fair hearing in the proceedings

concerned.

With regard to the judicial decisions 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 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).

Furthermore, the Commission finds that the applicant failed to

show that he could not present his case properly or that the

proceedings were otherwise unfair and thus violated Article 6 para. 1

(Art. 6-1) of the Convention. The Commission considers in particular

that the applicant had been able to comment upon the expert opinion in

the course of the hearing before the Stuttgart Administrative Court.

He did not challenge the expert in these proceedings. Furthermore,

the assessment of the evidence concerning the technical implications

of the envisaged production of ground water does not appear arbitrary.

As regards the applicant's complaint that he had no oral

hearing before the Baden Wuerttemberg Administrative Court of Appeal

as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, the

Commission recalls that this provision applies to appeal or cassation

proceedings in a way which clearly depends on the special features of

such proceedings (cf. No. 7211/75, Dec. 6.10.1976, D.R. 7 p. 104).

The decisive elements are the nature of the national appeal system,

the scope of the court's functions and the manner in which the

individual's interests are presented and protected before the court

(see Eur. Court H.R., Ekbatani judgment of 26 May 1988, Series A No.

134, paras. 27 and 28). Furthermore, the principle of publicity must

be fully respected at least in one instance dealing with the merits of

a case (Adler v. Switzerland, Comm. Report. 15.3.85, to be published

in D.R.).

In the present case, the Commission notes that the Stuttgart

Administrative Court, which decided at first instance on the merits of

the applicant's challenge concerning the permission to produce ground

water, held a public hearing in the course of which the applicant was

able to present his case and evidence was taken. The Baden

Wuerttemberg Administrative Court of Appeal, upon the applicant's

appeal, had to examine whether the Stuttgart Administrative Court had

committed procedural errors or whether its decision was incorrect

under substantive law. Having regard to the proceedings before the

Administrative Court of Appeal and the parties' written submissions in

the appeal proceedings, the Court of Appeal did not deem it necessary

to take further evidence or to have an oral hearing, but dismissed the

appeal unanimously.

The Commission, having in particular regard to the subject

matter of the administrative court proceedings concerned, finds that

the Court of Appeal was not called upon to decide any questions such

as issues related to the applicant's personal character, or his manner

of life which could not, as a matter of fair trial, have been properly

determined without his full rehearing.

Moreover, the Comission considers that the applicant's

submissions do not raise any issue under Articles 8 or 14 (Art. 8, 14)

of the Convention or Article 1 of Protocol No. 1 (P1-1) to the

Convention.

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 also complains under Article 6 para. 1 (Art.

6-1) of the Convention that his proceedings concerning the reduction

of purchase tax were unfair. However, the Commission finds that the

tax proceedings concerned did not relate to the applicant's civil

rights and obligations or to any criminal charge against him. Article

6 para. 1 (Art. 6-1) of the Convention therefore does not apply to the

proceedings concerned. Consequently, this part of the application is

incompatible ratione materiae with the provisions of the Convention

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

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

Menu

SCHRAFT v. the FEDERAL REPUBLIC OF GERMANY

SCHRAFT v. the FEDERAL REPUBLIC OF GERMANY

LEXI