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M. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 11587/85 • ECHR ID: 001-1282

Document date: December 1, 1986

Inbound citations: 0
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Cited paragraphs: 0
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Outbound citations: 2

M. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 11587/85 • ECHR ID: 001-1282

Document date: December 1, 1986

Cited paragraphs only

The European Commission of Human Rights sitting in private on

1 December 1986, the following members being present:

MM. C.A. NØRGAARD, President

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 February 1985 by

J.M. against the Federal Republic of Germany and registered on

19 June 1985 under file No. 11587/85;

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 they have been submitted by the applicant,

may be summarised as follows:

The applicant, born in 1924, is a Swiss national and resident in

Zurich. He is a businessman and joint partner of the Müller Pharma

Kommanditgesellschaft, a limited partnership in Hamburg. Before the

Commission he is represented by Mr. Bussmann, a lawyer practising in

Hamburg.

In 1980, following an accident in the transport of goods to the Müller

Pharma KG, the applicant instituted civil proceedings before the

Freiburg Regional Court (Landgericht) against the carrier claiming

compensation for the material damage as well as the loss of profit.

During these and the following proceedings the applicant was

represented by a lawyer.

On 2 November 1981 the Regional Court ordered the carrier to

compensate the material damage and dismissed the remainder of claims.

On 17 August 1983 the Karlsruhe Court of Appeal (Oberlandesgericht)

dismissed both the applicant's and the carrier's appeal.

On 17 October 1984 the Federal Court of Justice (Bundesgerichtshof)

decided not to accept the applicant's appeal on points of law

(Revision). The Court found that the case was of no fundamental

importance. Moreover, the appeal offered no prospect of success.

According to S. 554 (b) para. 1 of the German Code of Civil Procedure

(Zivilprozessordnung) in litigations concerning pecuniary claims of

more than forty thousand German Marks, the court of appeal

(Revisionsgericht) may refuse to accept the appeal (Revision) if the

case is of no fundamental importance. On 11 June 1980 the Federal

Constitutional Court (Bundesverfassungsgericht) held that the Federal

Court may only reject an appeal under S. 554 where it finds that it

offers no prospects of success.

On 28 December 1984 the Federal Constitutional Court rejected the

applicant's constitutional complaint as offering no prospect of

success. The Court found in particular that the German Basic Law

(Grundgesetz) did not require that detailed reasons were given in

final decisions of courts of appeal.

COMPLAINTS

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

Convention that the proceedings before the Federal Court of Justice

were unfair in that the Court incorrectly considered the appeal on

points of law as being manifestly ill-founded and did not give

detailed reasons for its decision of 17 October 1984.

THE LAW

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

Convention that his appeal on points of law was wrongly rejected by

the Federal Court of Justice.

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 under

Article 6 para. 1 (Art. 6-1) that the proceedings before the Federal

Court of Justice were unfair inasmuch as the Court did not give

detailed reasons for its decision.

The Commission recalls that Article 6 para. 1 (Art. 6-1) is in

principle applicable to proceedings before courts of appeal or of

cassation. However, the way in which it applies must clearly depend on

the special features of such proceedings (Eur. Court H.R., Axen

judgment of 8 December 1983, Series A no. 72 p. 12). The Commission

has already found that the absence of reasons in court decisions might

under specific circumstances raise an issue as to the fairness of the

respective proceedings. However, if the relevant domestic law

authorises an appeal court to reject an appeal on the ground that it

raises no legal issue of fundamental importance and offers no prospect

of success, it may be sufficient for that court simply to refer to the

provision authorising this procedure (cf. No. 8769/79, Dec. 16.7.81,

D.R. 25 p. 240).

In the instant case, the Commission observes that the Federal Court of

Justice expressly stated the reasons of its decision, namely the lack

of fundamental importance and of prospect of success.

The Commission considers that in these circumstances there is no

appearance that the proceedings before the Federal Court, in which the

applicant was represented by a lawyer, were unfair and thus violated

the applicant's right to a fair hearing guaranteed by Article 6

para. 1 (Art. 6-1).

It follows that the application is 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.

Deputy Secretary to the Commission President of the

Commission

(J. RAYMOND) (C.A. NØRGAARD)

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