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W. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 11687/85 • ECHR ID: 001-595

Document date: July 18, 1986

Inbound citations: 0
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Cited paragraphs: 0
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Outbound citations: 1

W. v. THE FEDERAL REPUBLIC OF GERMANY

Doc ref: 11687/85 • ECHR ID: 001-595

Document date: July 18, 1986

Cited paragraphs only

The European Commission of Human Rights sitting in private on

18 July 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Sir Basil HALL

Mr. H.C. KRÜGER, 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 31 January 1984 by

R.W. against the Federal Republic of Germany and registered

on 7 August 1985 under file No. 11687/85;

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 is a German citizen resident in Mörfelden-Waldorf near

Frankfurt. In the proceedings before the Commission, she is

represented by Mr. Wenger, a lawyer practising in Frankfurt.

In 1982, following a car accident with one Mr. St., the applicant

instituted civil proceedings before the Gerau District Court

(Amtsgericht) against both the respective insurance company and

Mr. St. as the insured person claiming compensation for damages and

interest thereon.

On 13 April 1983, the Gerau District Court ordered a certain amount to

be paid to the applicant, though it omitted to rule on the interest.

On 27 May 1983, the same court rejected in an independent decision the

applicant's request to have the above-mentioned decision corrected

with regard to the interest. The court held that the applicant's aim

to modify the judgment could not be achieved by means of the requested

correction according to S. 319 of the German Code of Civil Procedure

(Zivilprozessordnung) in view of the fact that that provision only

covered errors in writing or calculation and not errors in fact or in

law. The court furthermore observed that in any event the applicant

would have had first to request a correction of the statement of facts

in the judgment of 13 April 1983 in order to include the claim of

interest. Such a request would meanwhile be out of time.

On 28 November 1983, the Federal Constitutional Court

(Bundesverfassungsgericht) dismissed the applicant's constitutional

complaint as not offering prospects of success.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 (art. 6-1)

of the Convention that the proceedings before the Gerau District Court

were not fair. She alleges that the court did not read the complete

case file and overlooked the claim of interest in the first decision

of 13 April 1983.

2. The applicant furthermore complains that the court did not

correct the mistake in the subsequent proceedings. She alleges an

unfair hearing in breach of Article 6 para. 1 (art. 6-1) of the

Convention.

THE LAW

1. The applicant complains under Article 6 para. 1 (art. 6-1)

of the Convention that the civil proceedings before the Gerau District

Court in April 1983 have not been fair in as much as that court did

not take cognizance of the complete case file.

However, the Commission is not required to decide whether or not these

facts alleged by the applicant 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 the correction of a judgment according to

S. 319 of the German Code of Civil Procedure only applies in cases of

evident errors in writing or calculation. In the present case, the

Gerau District Court dismissed the applicant's request to correct the

judgment on the ground that the applicant alleged the omission of her

claim of interest which could not be considered as simply a writing

error nor could it be added without a prior change of the statement of

facts in separate proceedings. The Commission moreover notes that the

applicant, who was represented by a lawyer, did not lodge an appeal

(Berufung) against the first decision.

The Commission recalls its constant jurisprudence according to which

there is no exhaustion of domestic remedies where a domestic appeal is

not admitted because of a procedural mistake (see e.g. No. 6878/75,

Dec. 6.10.76, D.R. 6 p. 79). In the instant case, the applicant

failed to choose the correct legal procedure either to have the

statement of facts changed prior to the request of correction under

S. 319 of the German Code of Civil Procedure or to institute appeal

proceedings in time. The applicant 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 which might have absolved the applicant, according to

the generally recognised rules of international law, from exhausting

the 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 6 para. 1

(art. 6-1) of the Convention that the Gerau District Court's decision

not to correct its previous judgment was unfair.

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 (see No. 6172/73, Dec. 7.7.75, D.R. 3 p. 77).

It is true that in the present case the applicant also alleges that

the proceedings concerning the previous judgment were not fair within

the meaning of Article 6 para. 1 (art. 6-1).

However, the Commission finds that there is nothing in the case file

to indicate that the applicant, who was represented by a lawyer, could

not present her case properly, or that the proceedings were otherwise

unfairly conducted. Moreover, the Commission observes that the court

was bound to dismiss the applicant's request according to S. 319 of

the Code of Civil Procedure. This complaint does not therefore

disclose any appearance of a violation of the rights and freedoms set

forth in the Convention and specially in Article 6 para. 1 (art. 6-1).

It follows that this part of the application is manifestly ill-founded

within the meaning of 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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