Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12754/87

by E.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 3 March 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

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 23 February 1987

by E. against the Federal Republic of Germany and registered

on 26 February 1987 under file N° 12754/87;

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 applicant is a German citizen, born in 1926 and living in

F.-O. He is represented in the proceedings before the Commission by

Curt Freiherr v. Stackelberg, a lawyer with a right of audience

before the Federal Court (Bundesgerichtshof), whose practice is in

Karlsruhe.

1. In two previous applications the applicant complained of the

length of three sets of criminal proceedings instituted against him

and his wife by the Public Prosecutor in Trier, Saarbrücken and

Cologne (application No. 8130/78) and of the refusal to grant him

compensation for detention on remand in the Cologne proceedings which

had been discontinued in 1977 (application No. 9108/80). As regards

application No. 8130/78, the European Court of Human Rights (Court)

decided on 15 July 1982 that the length of the Trier and Cologne

proceedings constituted a breach of Article 6 para. 1 of the

Convention (Series A, Vol. 51). On 21 June 1983 the Court refused to

grant the applicant just satisfaction on account of alleged material

loss and non-pecuniary damage stating that as regards material loss

there was no causal connection between the applicant's claims and the

breach of Article 6 para. 1 and as regards non-pecuniary damage that

the finding of a violation already furnished sufficient just

satisfaction taking into account that the Trier Regional Court

(Landgericht) mitigated the applicant's sentence in view of the

inordinate length of the proceedings and that the Cologne proceedings

had been discontinued (Series A, Vol. 65, pp. 8-11, paras. 15-24).

The Court did not consider it necessary to defer its judgment as had

been requested by the applicant pending the outcome of an action for

damages lodged by him with the Trier Regional Court on 16 April 1964.

Application No. 9108/80 was rejected as being manifestly ill-founded

on 14 May 1981.

2. In September 1983 the applicant lodged another application,

No. 10804/84, which related to the aforementioned action for damages

instituted by the applicant before the Trier Regional Court on 16

April 1964. With that action the applicant had claimed a declaratory

judgment to the effect that the defendant State Rheinland-Pfalz was

responsible for the damage caused to him by investigation measures

through which his business partners were informed of the suspicion

that he had defrauded them.

The civil proceedings had been stayed from 1966 to 1976

pending the outcome of the criminal proceedings. On 23 March 1979 the

Trier Regional Court had dismissed the action stating that in view of

the fact that meanwhile the applicant had been convicted in the Trier

proceedings (namely on 17 March 1972 and the Federal Court rejected the

applicant's petition for a review on a point of law on 11 February 1976)

there was nothing to show that the investigating authorities had acted

unlawfully or arbitrarily in investigating the matter and hearing the

applicant's business partners and creditors as witnesses. Insofar as

the applicant had also complained of the length of the criminal

proceedings the Court pointed out that the action only related to

damage allegedly caused by the investigating authorities by conveying to

his creditors the suspicion that he defrauded them. Furthermore the

Court stated that in any event the applicant had to show that the

authorities acted arbitrarily. The mere allegation that criminal

proceedings were unreasonably long did not denote any misconduct in

office (Amtspflichtverletzung).

The applicant had then lodged an appeal (Berufung) raising in

his submissions of 25 September 1979 to the appellate court additional

claims for a declaratory judgment to the effect that the defendant had

to pay damages caused:

- by his detention on remand in the Trier and Saarbrücken

proceedings for four and a half years;

- by the length of the Trier criminal proceedings which

lasted more than 16 years and were thus unreasonable.

On 8 October 1980 the Koblenz Court of Appeal (Oberlandesgericht)

gave a default judgment against the applicant dismissing his appeal.

This judgment was reconsidered and maintained by decision of

4 March 1981. The Court of Appeal stated in this decision that the

original claims were unfounded. The additional claims were considered

as a new action which the appellate court refused to admit for reasons

of procedural economy (nicht sachdienlich).

The applicant had then lodged an appeal to the Federal Court

(Bundesgerichtshof). With this appeal he submitted the judgment given

on 15 July 1982 by the European Court of Human Rights and alleged that

the question of whether or not he was entitled to claim damages

because of the breach of Article 6 para. 1 of the Convention had first

to be decided under national law. On 29 November 1982 the Federal

Court refused to admit the appeal insofar as it concerned the

applicant's original claims. The remainder of the appeal (concerning

the additional claims) was admitted.

The applicant had lodged a constitutional complaint against

the Federal Court's decision of 29 November 1982 requesting the

Federal Constitutional Court (Bundesverfassungsgericht) to quash the

decision complained of insofar as it rejected his appeal and to order

the Federal Court to deal with this appeal. On 2 March 1983 a group

of three judges of the Federal Constitutional Court had rejected the

constitutional complaint as offering no prospects of success. The

decision was served on the applicant's counsel on 8 March 1983.

The applicant then complained to the Commission of the Federal

Court's decision of 29 November 1982 and of the dismissal of his

original claims with regard to which the decision complained of was

the final one. He considered it to be unfair that despite the

unreasonable length of the criminal proceedings the civil courts

expected him to state in detail and to prove which particular

investigating measures had been unlawful. He also complained of the

length of that part of the civil proceedings which was terminated by

the Federal Court's decision of 29 November 1982. He alleged that he

already raised this latter complaint implicitly in his submission to

the Federal Constitutional Court.

This previous application No. 10804/84 was rejected by the

Commission on 13 December 1984 as being manifestly ill-founded

insofar as the applicant had complained of the decisions given in the

proceedings concerning his action for damages and for non-exhaustion

of domestic remedies insofar as he complained of the length of these

proceedings. It was found that the applicant had failed to raise this

particular complaint before the Federal Constitutional Court.

3. The present application also relates to the applicant's civil

action for damages. The proceedings relating thereto were not

terminated by the Federal Court's decision which was the object of the

previous application No. 10804/84 as this Court admitted that part of

the applicant's appeal which concerned his additional claims raised in

second instance before the Koblenz Court of Appeal.

On 7 April 1983 the Federal Court gave a decision with

regard to the admitted part of the applicant's appeal against the

appellate court's judgment of 4 March 1981. It quashed this judgment

to the extent that it had confirmed the dismissal of the applicant's

additional claims and sent the case back for a new hearing and

decision on these new claims. The Federal Court pointed out that the

applicant had already in first instance referred to Article 6 para. 1

of the Convention and to the length of the investigation proceedings.

The additional claims raised in second instance were therefore not

based on completely new allegations and it was therefore appropriate

(sachdienlich) to deal with these claims in the pending proceedings.

The Federal Court further stated that a claim for compensation for the

applicant's detention on remand was probably lodged out of time but

the claim for compensation on account of the length of the proceedings

had to be determined.

Following the Federal Court's decision of 7 April 1983 the

Koblenz Court of Appeal again considered the applicant's alleged

additional claims for damages caused:

- by his detention on remand in the Trier and Saarbrücken

proceedings for four and a half years;

- by the length of the Trier criminal proceedings which

the European Court of Human Rights had judged to be

unreasonable in the decision of 15 July 1982.

It appears that at his request the applicant was granted

extensive time-limits to revise his arguments and substantiate his

allegations following the judgment of 21 June 1983 by the European

Court of Human Rights under Article 50 of the Convention.

On 23 January 1985 the Court of Appeal decided to maintain

the judgment by default given previously against the applicant on

8 October 1980.

The Court of Appeal found that the alleged compensation claim

for the applicant's detention on remand in the Trier and Saarbrücken

proceedings was time-barred as it had not been raised within three

years after the applicant's release in January 1974. In any event the

claim was unfounded as the applicant had neither shown that a public

official had committed misconduct in office nor that any concrete

damage was caused to him by any such alleged misconduct.

As to the alleged damage caused by the length of the Trier

proceedings, the Court of Appeal stated that lawyers' fees and

expenses incurred by the applicant did not depend on the length of the

proceedings but on the complexity of the case and the amount of work

involved and the days spent in court defending the applicant at oral

hearings. Therefore it did not matter that there had been periods of

inactivity or other pauses that unduly prolonged the proceedings. The

Court of Appeal furthermore considered that a loss of earnings had not

been substantiated. It also referred in this respect to the Article 50

judgment of 21 June 1983 where it is stated in para. 20: "the alleged

financial losses of Mr. and Mrs. Eckle result from the very existence

and outcome of the prosecutions brought against them. There is

nothing in the evidence submitted to support the view that the

asserted damage was attributable to the failure to comply with the

requirements of Article 6".

The applicant's appeal to the Federal Court was declared

inadmissible on 19 December 1985 as raising no issue of general

interest and being without prospects of success.

The Court confirmed the appellate court's finding that the

alleged first claim was time-barred and in any event unsubstantiated.

Furthermore it stated that the damage allegedly caused by the length

of the Trier proceedings was likewise not substantiated.

The applicant then lodged a constitutional complaint alleging

that the civil courts wrongly and arbitrarily dismissed his action.

He also complained in a general manner and without further details

that it violated fundamental rights to deprive him of his claim for

such a long time.

On 25 August 1987 a group of three judges of the Federal

Constitutional Court rejected the applicant's complaint as offering no

prospects of success. The applicant was imposed a fee of 300.- DM.

It is stated in the decision that the Federal Court's decision was

based on ordinary and not constitutional law and did not disclose any

arbitrariness.

COMPLAINTS

The applicant complains that the German courts wrongly

dismissed his action. He argues that the time-limit of three years

for raising the claim for compensation for his detention on remand did

not start with his release from detention but only in the moment when

the warrant of arrest was set aside in September 1977. To decide

otherwise violated the principle of a fair trial.

This principle was likewise violated in that the requirements

of the civil courts with regard to his obligation to substantiate his

claim were too strict. The applicant invokes Articles 5 para. 5 and 6

para. 1 of the Convention.

THE LAW

1. The applicant complains of the dismissal of his civil court

action claiming damages from the Land Rheinland-Pfalz and also of the

court 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 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 this case the applicant also complains

that the denial of his alleged claims for compensation on account of

detention on remand and the length of criminal proceedings violated

Articles 5 para. 5 and 6 para. 1 (Art. 5-5, 6-1) of the Convention.

However, neither the domestic court nor the Commission in the

previous application matter relating to the criminal proceedings

against the applicant found that the applicant's detention on remand

violated any of the provisions set out in Article 5 paras. 1-4 (Art.

5-1, 5-4) of the Convention. Consequently the applicant has no claim

under Article 5 para. 5 (Art. 5-5) of the Convention. As to the

alleged violation of Article 6 para. 1 (Art. 6-1) the applicant has

failed to substantiate it. He has not shown that the German courts

disregarded evidence offered by him or disregarded his submissions.

His arguments do in reality mean that the courts committed errors of

law and fact. Such allegations are, however, as stated above,

irrelevant.

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 further seems to complain of the length of the

proceedings before the civil courts.

It is true that Article 6 para. 1 (Art. 6-1) of the Convention

secures to everyone the right to have his civil rights decided within

a reasonable time.

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, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present case the applicant failed to substantiate the

present complaint in his submissions to the Federal Constitutional Court

which consequently considered the constitutional complaint as being

directed only against the Federal Court's decision of 19 December 1985.

In these circumstances the applicant cannot be considered to have

exhausted the remedies available to him under German law. Moreover,

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

special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at his disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) 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)

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E. v. the FEDERAL REPUBLIC OF GERMANY

E. v. the FEDERAL REPUBLIC OF GERMANY

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