FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4769/02 by T ü lin Ö ZG Ü R-KARADUMAN against Germany

The European Court of Human Rights (Fifth Section), sitting on 26 June 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mr M. Villiger , judges , Mrs B. Mayen, ad hoc judge , and Mrs F. E lens -P assos , Deputy Section Registrar ,

Having regard to the above application lodged on 25 August 2001,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms T ü lin Özgür- Karaduman, has the citizenship of Germany and Turkey . She was born in 1979 and lives in Mannheim in Germany . She was represented before the Court by Mr M. Schmitt, a lawyer practising in Mannheim . The German Government (“the Government”) were r epresented by their Agent, Mrs A. Wittling-Vogel , Ministerialdirigentin , of the German Ministry of Justice . The Turkish Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 and Rule 44), did not indicate that they wished to exercise that rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. First set of civil proceedings

On 7 May 1999 the applicant sold her car to Ms V. At that time, she lived at her father ’ s place of residence in Mannheim .

On 2 August 1999 Ms V. lodged a motion against the applicant with the Mannheim District Court ( Amtsgericht ), claiming DEM 500 as damages for the car ’ s alleged defects. The motion and all further correspondence were served to the place of residence of the applicant ’ s father.

On 9 September 1999 the District Court decided to apply a summary procedure ( Verfahren nach billigem Ermessen ) pursuant to section 495a of the Code of Civil Procedure ( Zivilprozessordnung , see relevant domestic law below).

On 12 October 1999 Ms V. extended her action and claimed further DEM 1,239.64.

By partial judgment ( Teilurteil ) of 22 October 1999 the District Court ordered the applicant, who had not participated in the proceedings, to pay DEM 500 plus interests to Ms V.

By final judgment ( Schlussurteil ) of 19 November 1999 the District Court ordered the applicant to pay further DEM 1,239.64 plus interests to Ms V. Both judgments were delivered to the place of residence of the applicant ’ s father.

2. Second set of civil proceedings

On 3 April 2000 the applicant, represented by counsel, lodged an action for declaration of nullity ( Nichtigkeitsklage ) pursuant to section 579 § 1 no. 4 of the Code of Civil Procedure, requesting the Mannheim District Court to set aside its judgments of 22 October and 19 November 1999. She alleged that she had left Germany on 14 May 1999 with the aim to live permanently in Turkey . She had neither informed her father about her departure nor left her new address. She had not learned about the civil proceedings until her return to Germany on 4 March 2000, when her father gave her the mail which had accumulated during her absence. In support of her allegations, she submitted her own affidavit ( eidesstattliche Versicherung ). She further nominated five witnesses, including her father, her mother, two former friends of hers and the postman who had delivered the final judgment of 19 November 1999 to her father ’ s place of residence.

The defendant, Ms V., contested these submissions. She pointed out that she had received a demand for payment from the applicant, which was dated 26 October 1999 and had been posted in Germany . The applicant replied that this letter had been posted by a friend of hers, whom she named as a witness.

On 7 June 2000, following a hearing, the Mannheim District Court declared the applicant ’ s action inadmissible. While leaving the question undecided whether the action for declaration of nullity was applicable in the present case, it found that the applicant had failed to establish to the satisfaction of the court ( glaubhaft machen ) that she had lodged her action within the statutory time-limit of one month after having learned about the two judgments. Taking into account both parties ’ submissions, the Regional Court did not attach credence to the applicant ’ s own affidavit . It considered, firstly, that the applicant had not submitted admissible evidence in support of her allegation that the demand for payment had been posted not by the applicant herself, but by a friend of hers. Furthermore, according to the acknowledgment of service ( Zustellungsurkunde ) of 24 November 1999, the final judgment had been served on the applicant herself. The applicant had not disproved that fact. The District Court further noted that the applicant had alleged that she had received the partial judgment of 22 October 1999 on her return to Germany . This allegation was contradicted by the fact that the copy of the partial judgment which was to be served on the applicant was located in the case-file of the first set of proceedings, because it had not been picked up by the addressee.

The District Court further pointed out that the applicant could have submitted further evidence, such as her air tickets or affidavits given by other persons. She failed however to do so. Referring to section 294 § 2 of the Code of Civil Procedure, the Regional Court decided not to hear any witnesses, as these had not been presented by the applicant during the hearing.

The applicant subsequently lodged an appeal with the Mannheim Regional Court ( Landgericht ). She argued, inter alia , that the District Court should have heard the witnesses, as section 294 § 2 of the Code of Civil Procedure did not apply in the instant case. She alleged that it would have been up to the District Court to summon the witnesses. She further maintained that the District Court, during the hearing, had not mentioned that any witnesses had been missing.

On 23 February 2001 the Mannheim Regional Court rejected the applicant ’ s appeal. The Regional Court noted, firstly, that the District Court, in the first set of proceedings, had violated the rules of civil procedure by applying the summary procedure even though the value of the issue exceeded the sum of DEM 1,200. However, this procedural error did not justify an annulment of the judgments.

Secondly, the Regional Court confirmed that the applicant had not established that she had lodged her action within the statutory time-limit. The Regional Court shared the District Court ’ s doubts as to the credibility of the applicant ’ s own affidavit . It further considered that the applicant had failed to explain why she had kept her German bank account and why she had not deregistered with the German authorities. Contrary to the applicant ’ s point of view, the District Court had not been obliged to summon any witnesses. According to Section 294 § 2 of the Code of Civil Procedure it was only admissible to take evidence by means which were immediately available to the court. It followed that only those means of evidence had to be considered which had been presented by the respective party. According to the Regional Court , the opinion that the court was obliged to summon witnesses was consistent neither with the wording of the legislation nor with the case-law of the Federal Court of Justice. In this respect, the Regional Court referred to a judgment of the Federal Court of Justice of 16 December 1959 (published in that court ’ s official collection [ BGHZ ] volume 31, p. 351).

On 9 April 2001 the Federal Constitutional Court , without giving reasons, refused to accept the applicant ’ s constitutional complaint for adjudication. The decision was served on the applicant ’ s counsel on 17 April 2001.

B. Relevant domestic law and practice

1. The summary procedure

The relevant provision of the Code of Civil Procedure ( Zivilprozessordnung ), as applicable at the relevant time, reads as follows:

Section 495a Summary procedure

“If the sum in dispute does not exceed one thousand and two hundred German marks, the court may determine its procedure at its reasonably exercised discretion ( nach billigem Ermessen ). Upon request, it shall hold a hearing.”

The summary procedure was introduced in 1990 with the aim to unburden the district courts by facilitating proceedings with a low value in dispute. When applying this procedure, a district court is not bound by the formal requirements of the Code of Civil Procedure. It has, however, to respect the right to a fair hearing (see the references in Zöller/Greger, Zivilprozessordnung (Commentary on the Code of Civil Procedure), 23 rd ed. 2002, § 495a, marginal note 8).

2. The action for declaration of nullity

The relevant provisions of the Code of Civil Procedure read as follows:

Section 579

Action for declaration of nullity

“(1) An action for declaration of nullity is admissible:

4. if a party had not been properly represented during the proceedings...”

According to the case-law of several appeal courts, the above-cited provision can also be applied by analogy in cases in which a party was ignorant of the proceedings through no fault of his or her own (see the references in Zöller/Greger, cited above, § 579, marginal note 6a).

Section 586 T ime-limit

“(1) The action [for declaration of nullity] has to be lodged within a time-limit of one month.

(2) The time-limit shall start on the day on which the party learns the ground of nullity...

(3) In case a party had not been properly represented before the court...the time-limit shall start on the day on which the judgment is served on that party...”

Section 589 E xamination of admissibility

“(1) The Court shall examine ex officio if the action is admissible and...if it has been lodged within the statutory time-limit. In case of non-compliance, the action shall be rejected as being inadmissible.

(2) The facts which establish that the action has been lodged within the time-limit have to be established to the satisfaction of the court ( glaubhaft machen ).”

Section 294 E stablishing facts to the satisfaction of the court ( Glaubhaftmachung )

“(1) A party who has to establish an assertion to the satisfaction of the court may employ all means of evidence and may be allowed to submit their own affidavit .

(2) Any evidence which cannot be taken immediately is inadmissible.”

The relevant provisions on appeals against first instance judgments read as follows:

Section 511

“Appeals on facts and law shall take place against the final judgments issued in the first legal instance.”

Section 511 a

“(1) Appeals on facts and law shall be inadmissible if the value of the subject matter in dispute does not exceed one thousand and five hundred German marks ...”

Section 513

“(1) Default judgments may not be challenged in the appeal by the party against whom they have been issued.

(2) A default judgment against which the objection as such is not available shall be subject to appeal to the extent that it is based upon the claim that no default has taken place. Section 511a shall not be applicable.”

On 1 January 2002 a new section 321a entered into force, which allows a court, on request of a party, to set aside its own final judgment in case of a violation of the right to a fair hearing.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about a violation of her right to a fair hearing .

THE LAW

The applicant complained about a violation of her right to a fair hearing before the civil courts. She alleged, in particular, that she had been denied the opportunity to contest the judgments given in her absence.

She relied on Article 6 § 1 of the Convention, which , insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

1. The parties ’ submissions

a) The Government

In the Government ’ s view, the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. The Government conceded that the Mannheim District Court had violated the Law of Civil Procedure by having applied the summary procedure even though the amount in dispute exceeded DEM 1,200. However, this did not lead to a violation of the Convention, because the action for declaration of nullity – assuming that the proceedings had been properly conducted – would have rectified this procedural error. According to the Government, the applicant had failed to lodge her action for declaration of nullity in accordance with the domestic law, as she had not established, as found by the Mannheim District Court, that she had lodged her action within the statutory time-limit. The Government further maintained that the applicant could alternatively have lodged an appeal against the judgments given in the first set of proceedings by analogous application of section 513 § 2 of the Law of Civil Procedure.

With regard to the new legal remedy introduced by section 321a of the Code of Civil Procedure, the Government argued that the applicant, if she had had that opportunity at the relevant time, would also have had to establish at which time she became aware of the two judgments given in her absence.

The Government further argued that the applicant had failed to lodge a constitutional complaint against the Mannheim District Court ’ s partial judgment of 22 October 1999. Even though the Federal Constitutional Court had refused to admit the applicant ’ s complaint without giving reasons, that complaint had presumably been inadmissible. In particular, the applicant had failed to make proper use of the remedies available to her before the lower courts.

With regard to the substance of the applicant ’ s complaint, the Government considered that there had been no violation of the applicant ’ s right to a fair hearing, as the applicant could have amended the shortcomings of the first set of proceedings if she had made proper use of the remedies available to her.

b) The applicant

The applicant contested these arguments. She maintained that the Government ’ s argument regarding the exhaustion of remedies available to her before the lower domestic courts was a circular one, as she was in fact complaining about the unfairness of these same proceedings. She further pointed out that the Federal Constitutional Court had not declared her complaint inadmissible. She had not been obliged to lodge a constitutional complaint against the partial judgment, as she had correctly lodged her constitutional complaint against the second instance judgment dated 23 February 2001, following exhaustion of prior domestic remedies.

With regard to the substance of her complaint, the applicant alleged that, according to the law of civil procedure as applicable at the relevant time, she had no opportunity to contest the impugned judgments. Both the District Court and the Regional Court had erroneously refused to hear the witnesses nominated by her with her action for declaration of nullity. Referring to several commentaries on the Code of Civil Procedure, she alleged that it would have been up to the civil courts to summon the witnesses, as it would place an excessive burden on the party to request him or her to present their witnesses to the court. She pointed out that she had no procedural means at her disposal which would allow her to compel a witness to appear before a civil court if they were reluctant to do so. This could only be done by the respective court itself. It followed that she did not have any possibility to present the postman, who was unknown to her, to the District Court. The same applied to her former friend. The only person who might have been ready to appear on her request was her father, but even that was uncertain. The applicant further maintained that, contrary to the Government ’ s point of view, the domestic courts did not allow an appeal if the amount in dispute did not exceed DEM 1,500.

The applicant further alleged that the Presiding Judge of the District Court, during the hearing of 7 June 2000, did not mention any missing witnesses. This led to the impression that the District Court used a procedural “trick” in order to dismiss her action.

The applicant finally stressed that the present situation could only arise in cases in which the summary procedure was applied. If a defendant did not appear in “ordinary” civil proceedings, the court would issue a default judgment and the defendant party would still have the opportunity to lodge an objection. In the present case, on the other side, the District Court had issued an incontestable final judgment, whilst the procedural possibility to contest the judgment because of a violation of the right to a fair hearing had only been introduced after the relevant time.

2. The Court ’ s assessment

The Court does not consider it necessary in the present case to rule on the objection made by the Government. Even assuming that the applicant complied with all formal requirements, the Court considers that the application is in any event inadmissible for the reasons set out below.

The Court notes at the outset that the Mannheim Regional Court , in its decision of 23 February 2001, considered that the Mannheim District Court committed a procedural error by applying the summary procedure even though the value of the claim exceeded DEM 1,200. The Court further takes note of the applicant ’ s allegation that she had not been able to defend herself, as she did not learn about these proceedings until her return from Turkey on 4 March 2000.

The Court considers, however, that if shortcomings occurred in the proceedings before the Mannheim District Court, there is no violation of the applicant ’ s rights under Article 6 if they were capable of being cured at a later stage. In this respect, the Court observes that German legislation provides for an action for declaration of nullity in cases where a party was not properly represented or – according to the domestic case-law – could not participate in the proceedings through no fault of their own. The action has to be lodged within a time-limit of one month from the date on which the party learned about the proceedings against them. It has to be established to the satisfaction of the court ( glaubhaft machen) that the action complied with that time-limit (see relevant domestic law above).

Turning to the circumstances of the present case, the Court notes that the applicant, following her return from Turkey and represented by counsel, lodged such an action for declaration of nullity with the Mannheim District Court. That court found that the applicant had failed to establish in accordance with the applicable rules of civil procedure that she had lodged her action for annulment within the statutory time-limit of one month after having learned about the proceedings against her.

As regards the applicant ’ s main argument that the District Court should have summoned the witnesses named by her, the Court considers that this is mainly a matter of applying the relevant procedural law. The domestic courts examined the applicant ’ s request to have witnesses called and gave reasons for their refusal to do so, referring both to the wording of the relevant provisions of the Code of Civil Procedure and to the case-law of the Federal Court of Justice. It appears from the parties ’ submissions that there exist differing opinions as to whether, under domestic law, the courts or the parties were obliged to summon the witnesses nominated by the applicant. Under these circumstances, the position taken by the domestic courts, which was supported by case-law of the Federal Court of Justice, cannot be regarded as arbitrary.

Moreover, the applicant has not shown that she had made any effort to induce the witnesses nominated by her, including her parents and two former friends of hers, to appear before the District Court. Furthermore, the applicant has not established that she had been prevented from submitting other evidence to the domestic courts, such as her air-ticket or affidavits by other persons, as suggested by the District Court in its judgment of 7 June 2000.

The Court further notes that both the District Court and the Regional Court examined the applicant ’ s own affidavit and gave reasons as to why they did not attach sufficient credence to it.

The Court finally considers that the applicant was represented by counsel throughout the second set of proceedings. In this respect, the Court reiterates that any shortcomings on the counsel ’ s side are not imputable to the respondent Government ( see Tripodi v. Italy , judgment of 22 February 1994, Series A no. 281 ‑ B, § 30; and Marie-Louise Loyen and Bruneel v. France , no. 55929/00, § 56, 5 July 2005).

Having regard to all these elements, the Court is satisfied that any shortcomings in the first set of proceedings could have been rectified with the action for declaration of nullity, provided the applicant had complied with the provisions on admissibility. It follows that the proceedings have to be regarded as fair and that the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Peer Lorenzen Deputy Registrar President