Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12699/87

by H.N.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 15 October 1987 the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

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

13 September 1986 by H.N. against the Federal Republic

of Germany and registered on 20 January 1987 under file N° 12699/87;

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&S

The applicant is a German citizen, born in 1948 and living in

Frankfurt/M.

She has lodged three previous applications which were all

declared inadmissible, namely: No. 9190/80 on 11 March 1982,

No. 10949/84 on 10 December 1986 and No. 12277/86 on 2 March 1987.

The last-mentioned application concerned a complaint of a search

effected in the applicant's house.

The present application concerns labour court proceedings and

the decisions given in these proceedings.

In December 1978 the applicant, who was then working in the

marketing section of a private company D, was given notice on account

of the company's intended close-down. The company shares were taken

over by another company E, which intended to continue the business

activities after a reorganisation. Part of D's staff were taken over

by E, but not the applicant. She therefore brought an action alleging

that her dismissal was not justified for social reasons.

The Frankfurt Labour Court (Arbeitsgericht) dismissed the

action on 20 August 1979. The Regional Labour Court (Landesarbeits-

gericht) confirmed this judgment on 7 August 1980 but on 14 October 1982

the Federal Labour Court (Bundesarbeitsgericht) quashed the previous

decision and sent the case back for a new trial before the Regional

Labour Court. The Labour Court directed that the lower court examine

whether the decision as to which D company staff should be taken over

was left exclusively to the E company, or whether the D company had

been authorised by the E company to decide this matter and had

implicitly undertaken the obligation vis-à-vis its staff to have them

all transferred to the E company. In the latter case it would also

have to be examined whether the applicant had been offered an

acceptable post or whether she had declined any position on the ground

that she did not wish to move to Hannover, the seat of the E company.

On 22 May 1985 the Regional Labour Court confirmed the Labour

Court's judgment of 20 August 1979 insofar as it rejected the

applicant's claim that the dismissal had been unjustified. However, it

ordered the defendant company to pay the applicant DM 11,027.-. The

Court found that there was no evidence to show that the defendant

company had undertaken to transfer all staff including the applicant.

The Court pointed out that, according to the company's manager, Mr. H.,

who was heard as a witness, efforts were made by the company to help its

staff to find a new position with the E company but no binding

promises had been given in this respect. Furthermore, the director of

the E company had stated as a witness that his company had not

authorised the defendant company to make any binding offers concerning

job transfers. These testimonies were corraborated, in the Court's

opinion, by the statements of a further witness, the former chairman

of the works council.

The applicant's complaint to the Federal Labour Court on the

Regional Labour Court's refusal to grant her leave to appeal was

rejected on 15 July 1986 as being inadmissible (unzulässig), the

applicant having failed to show that the decision complained of

diverged from the Federal Labour Court's case-law. Insofar as the

applicant also complained of the Regional Labour Court fixing the

value of the claim, the Federal Labour Court stated that this part of

her appeal had not been submitted under her lawyer's responsibility,

and was therefore - already for that reason - of no relevance.

The applicant also lodged constitutional complaints against

the Regional Labour Court's decision of 22 May 1985 and the Federal

Labour Court's decision of 15 July 1986.

The first of these complaints was rejected by a group of three

judges of the Federal Constitutional Court (Bundesverfassungsgericht)

on 5 March 1986 as offering no prospects of success. It is stated

in the decision that there was nothing to show that the Regional

Labour Court had arbitrarily disregarded any relevant allegations or

arguments submitted by the applicant.

The second complaint was rejected on 3 November 1986 as also

offering no prospects of success.

&_COMPLAINTS&S

The applicant complains that her right to be heard was

violated in the labour court proceedings because the courts

disregarded relevant evidence, i.e. letters of 3 October 1978

addressed by the D company to some employees who were offered

a transfer to the E company. The contents of these letters prove, in

the applicant's opinion, that the D company was in a position to

influence or determine the question of which members of its staff were

to be offered a job in the E company.

The applicant furthermore complains of the length of the

proceedings.

She invokes Articles 6 para. 1, 14, 17, and 18 of the

Convention and Article 1 of the Protocol No. 1.

&_THE LAW&S

The applicant has complained of the decision of the Frankfurt

Regional Labour Court of 22 May 1985, dismissing her claim that her

dismissal from employment in a private company was unjustified. She

has also complained of the Labour Court proceedings.

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 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 her

right under Article 6 para. 1 (Art. 6-1) of the Convention to a fair hearing

was violated because the Labour Court allegedly disregarded certain evidence

contained in letters that were sent by her former employer to certain employees

offering them employment in the E company which took over her employer's

assets. However, the finding of the Regional Labour Court, that vis-à-vis the

applicant her former employer had not undertaken any obligation to provide her

with employment in the E company, was based on the evidence given by several

witnesses. In these circumstances it cannot be found that the assessment of

the evidence by the Regional Labour Court discloses any arbitrariness. The

applicant has not shown that, in order to assess the facts in her case fairly,

the letters in question would have had to be taken into account.

Insofar as the applicant also invokes Article 6 (Art. 6) with regard to

the proceedings before the Federal Labour Court and the Federal Constitutional

Court, it has to be noted that the proceedings in question did not relate to

civil rights in the meaning of that provision. The Federal Labour Court did

not decide on the merits of the applicant's claim, but only whether or not

leave to appeal had wrongly been refused. The Federal Constitutional Court,

when determining in a preliminary examination whether or not a constitutional

complaint is admissible, likewise does not take a decision relating to "civil

rights and obligations" in the sense of Article 6 (Art. 6) of the Convention.

It follows that the application is, to this extent, partly

manifestly ill-founded, partly incompatible ratione materiae with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant has further complained of the length of the

labour court proceedings.

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 raise this

complaint before the Federal Constitutional Court and has therefore

not exhausted the remedies available to her under German law.

Moreover, 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 her disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and her

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.&S

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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