AS TO THE ADMISSIBILITY OF

Application No. 11614/85

by Maria-Theresia EMRICH

against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private on

12 March 1987, the following members being present:

                    MM. C.A. NØRGAARD, President

                        G. SPERDUTI

                        J.A. FROWEIN

                        M.A. TRIANTAFYLLIDES

                        E. BUSUTTIL

                        G. TENEKIDES

                        S. TRECHSEL

                        B. KIERNAN

                        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

                   Mr.  F. MARTINEZ

                   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 21 February 1985

by Maria-Theresia EMRICH against the Federal Republic of Germany and

registered on 24 June 1985 under file No. 11614/85;

        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 submitted by the applicant, may be

summarised as follows:

        The applicant, born in 1936, is a German national and resident

in Wiesbaden.  She has studied law and is now a housewife.  The

applicant and her husband jointly own an estate in Wiesbaden.

        In 1976 the Wiesbaden Municipal Office (Magistrat) permitted

the applicant's neighbours, Mr. and Mrs.  K, to construct a duplex

house as well as to raise the level of their building site.

Thereupon, the applicant and her husband complained to the Municipal

Office of a violation of building regulations, inasmuch as the

neighbours had raised the level of their building site and exceeded

the permissible overall height.  On 4 April 1978 the Municipal Office

replied that Mr. and Mrs.  K had not violated any building regulations

which served the protection of neighbours' interests (nachbarschützende

Vorschriften).  The applicant's and her husband's administrative

appeal (Widerspruch) was rejected by the Municipal Office on

12 March 1979.

        On 3 July 1980 the Wiesbaden Administrative Court (Verwaltungs-

gericht) dismissed their claim that the Municipal Office should revoke

the neighbours' building permit and order the restoration of the

former situation.

        On 3 May 1984 the Hesse Administrative Court of Appeal

(Verwaltungsgerichtshof), upon the appeal (Berufung) of the applicant

and her husband, quashed the Municipal Office's decisions of

4 April 1978 and 12 March 1979.  It ordered the Office to take a new

decision as to the raising of the neighbours' estate within the

minimum space between the two buildings (Bauwich).  The Court

dismissed the remainder of the appeal and did not grant leave to

appeal.  On 23 August 1984 the Federal Administrative Court

(Bundesverwaltungsgericht) rejected the applicant's appeal on points

of law (Revision) as being inadmissible.

        On 13 December 1984 the Federal Constitutional Court (Bundes-

verfassungsgericht) dismissed the applicant's constitutional complaint

(Verfassungsbeschwerde), in which she had alleged that the decision of

the Federal Administrative Court to declare her appeal on points of

law inadmissible was incorrect and unfair, as it offered no prospect

of success.

        Meanwhile, on 22 November 1984 the Wiesbaden Municipal Office

ordered the neighbours K partly to lower the level of their site

within the minimum space, and informed the applicant thereof.

        On 18 January 1985 the Wiesbaden Administrative Court

dismissed the request of the applicant and her husband to execute the

Hesse Administrative Court of Appeal's decision of 3 May 1984 insofar

as it ordered the Municipal Office to take a new decision as to the

raising of the neighbours' estate within the minimum space between two

buildings.  The Court referred to the possibility to challenge the

lawfulness of the Municipal Office's new decision of 22 November 1984

in separate proceedings.

        The applicant and her husband thereupon filed an

administrative appeal against this decision which the Wiesbaden

Municipal Office dismissed on 30 May 1985.  On 5 December 1985 the

Federal Constitutional Court declared the applicant's constitutional

complaint inadmissible on the ground that she had not appealed to the

administrative courts.  Her further complaint to the Hesse Court of

Justice (Staatsgerichtshof) was declared inadmissible on 11 June 1986.

COMPLAINTS

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

Convention that the proceedings before the German administrative

courts were unfair and arbitrary.  She submits in particular that her

case was dealt with by different rapporteurs at the Administrative

Court and the Administrative Court of Appeal contrary to the general

rules on the assignment of cases to rapporteurs.  Moreover, she

alleges that the Federal Administrative Court incorrectly, by decision

of a group of three judges, rejected her appeal on points of law as

inadmissible.  She also considers that the allegedly incorrect

decisions of the Courts clearly indicate that they were biased against

her.

2.      The applicant complains under Article 1 of Protocol No. 1 that

her property right has been violated by the respective decisions of

the Municipal Office and the administrative courts.

3.      She also invokes Articles 3, 8, 13, 14 and 17 of the

Convention in respect of her above complaints.

THE LAW

1.      The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the proceedings before the administrative courts were

unfair.

        Article 6 para. 1 (Art. 6-1) provides that "in the determination of his

civil rights and obligations ... everyone is entitled to a fair and

public hearing ... by an independent and impartial tribunal

established by law".

        The Commission notes that, in the present case, the applicant

brought administrative proceedings challenging the lawfulness of her

neighbours' building permit and requesting that the administrative

authority concerned should order the partial demolition of their

building and the restoration of the former level of the building site.

These administrative proceedings concerned the neighbours' right

under public law to construct a certain building on their real estate

and the supervisory functions exercised by the administrative

authority in respect of the neighbours.   The question, therefore,

arises whether or not these proceedings involved a determination of

the applicant's civil rights and obligations within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention (cf. mutatis mutandis, Eur.  Comm. H.R.,

No. 7941/77, Dec. 1.5.79, D.R. 16 p. 88, Eur.  Court H.R., Benthem judgment of

23 October 1985, Series A no. 97, paras. 32 et seq.).  However, the Commission

does not find it necessary to settle this issue as the applicant's complaints

under Article 6 para. 1 (Art. 6-1) of the Convention, in any event, have to be

rejected for the following reasons.

a)      As regards the applicant's complaints concerning the proceedings before

the Administrative Court and the Administrative Court of Appeal in 1980 to 1984

the Commission is not required to decide whether or not the facts alleged by

the applicant disclose any appearance of a violation of Article 6 (Art. 6) of

the Convention 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.  The Commission recalls

that the mere fact that an applicant has submitted his case to the various

competent courts does not of itself constitute compliance with this rule.  It

is also required that the substance of any complaint made before the Commission

should have been raised during the proceedings concerned (cf.  No. 8257/78,

Dec. 10.7.78, D.R. 13 p. 248).

        In the present case the applicant has lodged a constitutional

complaint with the Federal Constitutional Court.  However, she

complained only of the allegedly incorrect decision of the Federal

Administrative Court and of the unfairness of the proceedings before

that Court.  She did not raise, either in form or in substance, any

complaints as regards the proceedings before the Administrative Court

and the Administrative Court of Appeal.  Moreover, an examination of

the case does not disclose the existence of any special circumstances,

which might have absolved the applicant from raising these complaints

in the proceedings referred to.

        It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and her complaints

under Article 6 para. 1 (Art. 6-1) of the Convention as regards the proceedings

before the Administrative Court and the Administrative Court of Appeal must be

rejected under Article 27 para. 3 (Art. 27-3+26) in conjunction with Article 26

of the Convention.

b)      With regard to the applicant's complaints of the allegedly

incorrect decision of the Federal Administrative Court the Commission recalls

first 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; No.

10000/82, Dec. 4.7.83, D.R. 33 pp. 247, 255/256).

        It is true that in this respect the applicant complains under

Article 6 para. 1 (Art. 6-1) of the Convention that her appeal on points of law

was not considered in fair proceedings by an impartial tribunal

established by law.  However, the applicant has, apart from the

general allegation of an incorrect decision, not substantiated that

the Court was biased against her or that the proceedings were

otherwise improperly conducted.  The Commission, therefore, finds no appearance

of a violation of her rights set forth in Article 6 para. 1 (Art. 6-1) . It

follows that her complaint in respect of the proceedings before the Federal

Administrative Court is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

c)      As regards the applicant's complaint that the further

proceedings in 1985 were incorrect and unfair the Commission is also

not required to decide whether or not the facts alleged by her

disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention 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.

        The Commission observes that according to S. 90 of the Federal

Constitutional Court Act (Bundesverfassungsgerichtsgesetz) a

constitutional complaint can generally only be lodged after all

remedies available under German law have been exhausted.  In the

present case, on 5 December 1985 the Federal Constitutional Court

declared the applicant's constitutional complaint inadmissible on the

ground of non-exhaustion of ordinary remedies.  The Commission recalls

its constant jurisprudence according to which there is no exhaustion

of domestic remedies in the sense of Article 26 (Art. 26) of the Convention

where a domestic appeal is not admitted because of a procedural

mistake (see No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79).  In the present

case the applicant failed to comply with the requirement, under the

Federal Constitutional Court Act, to exhaust ordinary remedies.  She

has therefore not exhausted the remedies available to her under German

law.  Moreover, an examination of the case does not disclose the

existence of any special circumstances that 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.

2.      The applicant furthermore complains under Article 1 of

Protocol No. 1 (P1-1) that the respective proceedings violated her right to

property.

        It is true that Article 1 of Protocol No. 1 (P1-1) guarantees to

everyone "the peaceful enjoyment of his possessions".

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant in this respect disclose any

appearance of a violation of this provision as it has already found

that, in the present case, the applicant, in her constitutional

complaint in 1984, only complained that the proceedings before

the Federal Administrative Court were incorrect and unfair.  She did

not raise, either in form or in substance, the complaint of a

violation of her right to property under S. 14 of the Basic Law

(Grundgesetz) which corresponds to Article 1 of Protocol No. 1 (P1-1).

        It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and her complaint under

Article 1 of Protocol No. 1 (P1-1) must be rejected under Article 27 para.

3 in conjunction with Article 26 (Art. 27-3+26) of the Convention.

3.      The applicant also invokes Articles 3, 8, 13, 14 and 17

(Art. 3, 8, 13, 14, 17) of the Convention in respect of her complaints.

However, the Commission finds no indication of a violation of her rights under

these Articles of the Convention.  It follows that this part of the application

is also manifestly ill-founded 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)