Lexploria

The European Commission of Human Rights sitting in private on

7 July 1986, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

G. JÖRUNDSSON

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. 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 10 September 1984 by

A.D. against the Federal Republic of Germany and registered

on 19 November 1984 under file No. 11258/84;

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, a German citizen born in 1927, is an architect resident

in Fürstenfeldbruck.

I.

In 1970, the applicant sold a part of his estate and at the same time

undertook to construct a bungalow for the purchasers. Pending the

building works, difficulties arose between the applicant and the

purchasers with regard to allegedly incomplete payments and the

applicant's wish to withdraw from the contract . In 1973 the Munich

Court of Appeal (Oberlandesgericht) finally ordered the applicant to

transfer the property rights at issue to the purchasers. In July 1983,

the applicant requested the Munich Regional Court (Landgericht) to

grant him free legal aid in order to institute civil proceedings

against the purchasers with a view to a retransfer of the property

rights. On 16 August 1983, the court rejected that request as being

insufficiently substantiated. The applicant's appeal was dismissed by

the Munich Court of Appeal on 6 December 1983. On 5 March 1984, the

Federal Constitutional Court (Bundesverfassungsgericht) dismissed the

applicant's constitutional complaint as it offered no prospects of

success.

II. a)

In 1970 the applicant also arranged with a local bank institute for a

mortgage debt (Grundschuld) relevant to his estate in order to secure

the financing of his building activities. In 1974 the bank started a

first set of enforcement proceedings aiming at a forced sale by

auction (Zwangsversteigerung) of the applicant's estate. Civil

proceedings instituted by the applicant with a view to the annulment

of the mortgage debt ended on 18 November 1982 with a decision of the

Federal Court of Justice (Bundesgerichtshof) refusing to grant the

applicant free legal aid for further appeal proceedings.

II. b)

In 1979 the applicant changed his financing bank and thereby also

transferred the mortgage debt to this second bank. Apparently towards

the end of 1980 that new mortgagee (Grundschuldgläubiger) started

enforcement proceedings with regard to the applicant's estate.

On 10 January 1984, the Munich District Court (Amtsgericht) decided

upon the applicant's request that these proceedings were to be

deferred until an auction envisaged for March 1984 in order to achieve

a better result of the forced sale by auction. On 27 January, the

Munich District Court fixed as the date of that auction 28 March 1984.

On 13 March 1984, a judicial officer (Rechtspfleger) at the District

Court rejected the applicant's request for an adjournment of the

proceedings, since he had not shown, as required by S. 30a of the

German Code on Forced Sales by Auction (Zwangsversteigerungsgesetz),

that he would be able to avoid the forced sale of the property. On

26 March 1984, the applicant submitted objections (Erinnerungen)

against that decision.

On 28 March 1984, the Munich District Court, without awaiting a

decision on the objections submitted on 26 March 1984, accepted the

highest offer made for the property and decided that the property had

been sold by forced sale (Zuschlagsbeschluss). The court at the same

time rejected the applicant's further requests for the discontinuance

of the proceedings on the ground that the applicant had not shown that

he was exposed to exceptional personal hardship as required by S. 765a

in conjunction with S. 769 para. 2 of the Code of Civil Procedure

(Zivilprozessordnung).

The applicant appealed against this decision to the Munich Regional

Court which rejected the appeal on 14 May 1984 as unfounded.

Upon the applicant's further appeal, the Munich Court of Appeal

quashed the decision of the Regional Court on 26 July 1984. The Court

of Appeal held that the applicant had been denied a fair hearing,

since his objections of 26 March 1984 against the decision refusing

postponement of the proceedings had not been examined at the same time

as his appeal against the decision of 28 March 1984 regarding the

forced sale, which was a procedural error. The Court of Appeal

therefore referred the matter back to the Regional Court.

On 10 October 1984, the Munich Regional Court resumed the proceedings

and examined in detail the issue dealt with in the decision of

13 March 1984, namely whether under S. 30a of the Code on Forced Sales

by Auction the applicant was entitled to a postponement of the

enforcement proceedings. The Regional Court answered this question in

the negative. The Court again rejected the appeal against the

decision of 28 March 1984 regarding the forced sale.

The applicant's further appeal was dismissed by the Munich Court of

Appeal on 20 November 1984 on the procedural ground that the German

law provided for no further appeal.

II. c)

On 12 November 1984, a judicial officer (Rechtspfleger) of the Munich

District Court ordered that the applicant had to leave his former

estate. On 22 November 1984, a court's bailiff (Gerichtsvollzieher)

enforced that order. The applicant alleges that as a result of this

forced removal he had lost part of this personal property.

On 17 December 1984, the Federal Constitutional Court dismissed the

applicant's constituional complaint concerning both the proceedings of

forced sale by auction and the forced removal as not offering

prospects of success. The court found that the Regional Court had

considered the applicant's submissions referring to a discontinuation

of the forced sale by auction and therefore did not violate his right

to a fair hearing. The complaints concerning the forced removal were

inadmissible on the ground of non-exhaustion of legal remedies.

COMPLAINTS

1. The applicant complains of not having been granted free legal

aid in regard to both the civil proceedings with the purchasers of his

estate and the civil proceedigs with his first bank. He alleges a

denial of access to a court and an unfair hearing. He invokes

Articles 6 para. 1, 14 and 17 (Art. 6-1, art. 14, art. 17)

of the Convention.

2. The applicant furthermore complains about the conduct of the

proceedings leading to the forced sale by auction of his estate. He

alleges that his requests and submissions, including his requests for

the taking of evidence, have not been properly considered. He submits

that his right to a fair hearing and to peaceful enjoyment of

possessions, as guaranteed by Articles 6 para. 1, 14 and 17

(Art. 6-1, art. 14, art. 17) of the Convention and Article 1 of

Protocol No. 1 (P1-1) have been infringed.

3. The applicant finally submits that the forced removal from his

estate and the loss of personal property caused by that measure have

violated his right to respect for property, as guaranteed by Article 1

of Protocol No. 1 (P1-1).

THE LAW

1. The applicant complains that he was not granted free legal aid

in respect of the civil proceedings both with the purchasers of his

estate and with his first financing institute. He considers that the

courts failed to ensure his right of access to a court and to a fair

hearing within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention.

The Commission recalls that, under Article 25 para. 1 (Art. 25-1)

of the Convention, it is only the alleged violation of one of the

rights and freedoms set forth in the Convention that can be the

subject of an application presented by a person, non-governmental

organisation or group of individuals.

It is true that, under Article 6 para. 3 (c) (Art. 6-3-c) of

the Convention, everyone charged with a criminal offence has the

right, subject to certain conditions, to be granted free legal

assistance. In civil proceedings, as in the present case, no right to

free legal aid is as such included among the rights and freedoms

guaranteed by the Convention. In this respect, the Commission refers

to its constant jurisprudence (see No. 7211/75, Dec. 6.10.76, D.R. 7

p. 105).

2. However, the applicant alleges that as a result of the refusal

to grant him legal aid he was denied access to a court and a fair

hearing before a court. The Commission recalls in this respect the

case-law of the European Court of Human Rights (Eur. Court H.R.,

Airey judgment of 9 October 1979 Series A no. 32) and the Commission's

own case-law (see, for instance, No. 9353/81, Dec. 11.5.83, D.R. 33

p. 133) from which it follows that the requirement of a fair hearing

contained in Article 6 para. 1 (Art. 6-1) of the Convention may

necessitate the provision of legal aid in certain circumstances.

On the basis of this case-law the Commission has examined the

circumstances in the present case, but has found no indication that in

either of the two sets of proceedings the applicant was denied access

to a court or a fair court hearing as a result of the refusal to grant

him legal aid.

Consequently, the Commission finds no appearance of a violation of

Article 6 para. 1 (Art. 6-1) of the Convention in this respect. 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.

3. The applicant furthermore complains under Article 6 para. 1

(Art. 6-1) of the Convention of the proceedings of the forced sale by

auction of his estate.

a) The first issue to be decided is whether these proceedings

involved a determination of his civil rights and obligations within

the meaning of Article 6 para. 1 (Art. 6-1). In this respect, the

Commission recalls its case-law that decisions taken by a court during

proceedings enforcing adjudicated claims do not necessarily entail a

new and separate determination of civil rights, as compared to the

initial court proceedings and decisions. In the present case,

however, the proceedings of the forced sale by auction of the

applicant's estate, though enforcing an already adjudicated claim,

raised new legal issues under the German Code on Forced Sales by

Auction rendering remedies to the debtor to avoid the forced sale by

auction and, thereby, to save his property.

In these circumstances the Commission considers that the proceedings

at issue concerned the determination of the applicant's civil rights

and obligations within the meaning of Article 6 para. 1 (Art. 6-1).

b) The applicant complains that the German courts charged with

the public sale by auction conducted the proceedings improperly and

arrived at arbitrary decisions.

The Commission first recalls that in accordance with Article 19

(Art. 19) its only task is to ensure the observance of the obligations

undertaken by the Parties to 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).

However, the applicant complains under Article 6 para. 1 (Art. 6-1)

that the respective court proceedings were not fair. It is true that

on 26 July 1984 the Munich Court of Appeal found that the preceding

hearing before the Munich Regional Court had not been fair and, on

that ground, quashed its decision and returned the case to the

Regional Court for a new examination. The Regional Court reconsidered

the matter, including the request for a postponement of the

proceedings which had previously not been taken into account, and gave

a new decision on the matter on 10 October 1984.

It follows that the unfairness which may have occurred was rectified

within the framework of the domestic legal remedies and that there is

no reason to consider the proceedings as a whole to have been unfair.

The Commission does not, therefore, find any appearance of a violation

of the rights set forth in Article 6 para. 1 (Art. 6-1). It follows

that in this respect the application is manifestly ill-founded within

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

4. The applicant also invokes a violation of Article 1 of

Protocol No. 1 (P1-1) which secures to every natural or legal person the

peaceful enjoyment of his possessions.

The Commission observes that the applicant's estate was transferred by

court order to another private person under proceedings of a forced

sale by auction. The applicant thus lost his property in connection

with civil proceedings aimed at satisfying his creditors.

Consequently, there is no appearance of a violation of the right to

peaceful enjoyment of possessions as guaranteed by Article 1 of

Protocol No. 1 (P1-1) (see mutatis mutandis No. 7256/75, Dec.

10.12.76, D.R. 8 p. 161).

The Commission concludes that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

5. The applicant also complains about his eviction from his

former estate and the alleged loss of personal property in connection

therewith. He alleges that he was denied access to a court as well as

respect for his property. He relies on Article 6 para. 1 (Art. 6-1)

of the Convention and on Article 1 of Protocol No. 1 (P1-1).

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.

The Commission observes that according to S. 90, para. 2 of the

Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) a

constitutional complaint can only be lodged after all the other

remedies available had been exhausted. In the present case, the

Federal Constitutional Court declared the applicant's constitutional

complaint inadmissible insofar as it concerned the complaints at

issue, because the applicant had not previously requested a decision

of the Munich District Court according to S. 766 of the German Code of

Civil Procedure.

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 No. 6878/75,

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

to comply with the requirements under the Federal Constitutional Court

Act and has therefore not exhausted the remedies available to him

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 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.

6. The applicant also alleges violations of Articles 14 and 17

(Art. 14, art. 17) of the Convention in respect of his various

complaints. However, the Commission finds no appearance of a

violation of either of these Articles (Art. 14, art. 17). It follows

that this aspect of 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

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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DORNBACH v. THE FEDERAL REPUBLIC OF GERMANY

DORNBACH v. THE FEDERAL REPUBLIC OF GERMANY