AS TO THE ADMISSIBILITY OF
Application No. 19458/92
by D. Ltd.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 13 October 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 December 1991
by D. Ltd. against Germany and registered on 30 January 1992 under file
No. 19458/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant company is the German branch of an English limited
liability company. The parent company is registered in London. The
German branch is domiciled at Griesheim. Its managing director is
Mr. Knut Stache.
The facts of the case as submitted by the applicant may be
summarised as follows.
In 1986 the applicant company brought an action for damages
against the Federal Republic of Germany represented by its Minister of
Defence in connection with negotiations of a contract. The action was
dismissed by the Koblenz Regional Court (Landgericht) on 9 July 1987.
The Court found that contrary to the applicant's allegation the
business discussions between the parties had not reached the stage
where any obligations on the part of the defending party were created.
A written note on a conversation which was held on 9 December 1982
could not be interpreted as to constitute a preliminary agreement
(Vorvertrag).
The applicant's appeal was rejected by the Koblenz Court of
Appeal (Oberlandesgericht) on 18 October 1989. This Court heard three
witnesses and likewise found that there was no evidence that the
parties had reached a preliminary agreement on 9 December 1982.
On 5 February 1991 the Federal Court (Bundesgerichtshof) refused
to admit the applicant's appeal on points of law (Revision) stating
that the matter did not raise any important issue nor offered any
prospect of success.
The applicant company then lodged a constitutional complaint
which was rejected by the Federal Constitutional Court
(Bundesverfassungsgericht) on 2 October 1991 as being partly
unsubstantiated and therefore inadmissible and partly as offering no
prospect of success. In the latter respect the Court stated that the
judgements did not disclose any arbitrariness and there was nothing to
show that the applicant had been denied a fair hearing.
The applicant company brought a further action against a lawyer
claiming repayment of certain lawyer's fees. The action was dismissed
by the Koblenz District Court on 17 March 1988. The Court found that
the defendant lawyer had first accepted to represent the applicant
company in appeal proceedings in the above-mentioned matter, but, after
having examined the case file, advised the company that the intended
appeal did in his opinion not offer prospects of success. He therefore
refused to represent the company in the appeal proceedings which were
carried through contrary to his advice. The Court considered that in
these circumstances the defendant lawyer had acted correctly and that
a fee was due to him for the examination of the case.
The applicant company's requests for the appointment of an
official counsel (Notanwalt) and for leave to appeal out of time was
rejected by the Koblenz Regional Court on 31 May 1988. The Court found
that the District Court's judgment had been served on 21 March 1988.
Therefore an appeal had to be lodged before 21 April 1988. However,
the applicant company had not made submissions before 16 May 1988 and
had not indicated any valid excuse for the non-observance of the
time-limit for lodging the appeal. In any event the appeal would have
been inadmissible as the value of claim did not exceed the minimum
amount required by law. It was true that the District Court had
decided in written proceedings and that an appeal would lie if written
observations of the appellant had not been taken into account by the
trial court. There was however nothing to show that the applicant
company's observations had not been considered by the District Court.
The applicant's constitutional appeal was rejected by the Federal
Constitutional Court on 29 August 1988 as being clearly ill-founded.
The Court considered that the decisions complained of did not disclose
any appearance of a violation of the applicant company's right to be
heard. It was ordered to pay a fee in the amount of 500DM.
COMPLAINTS
The applicant company complains under Article 6 of the Convention
of a denial of a fair hearing in the above civil proceedings.
It alleges that two of the witnesses who were heard in the
proceedings concerning the alleged claim for damages against the
Federal Republic had made statements in the civil proceedings which
contradicted statements which they had made previously in criminal
proceedings. It maintains that there was sufficient evidence showing
that its action was well-founded. It concludes that it was denied a
fair hearing because otherwise its action would not have been
dismissed. In this context it is also alleged that certain submissions
had not been considered by the appeal court.
With regard to the proceedings against the lawyer the applicant
company alleges that it had not been communicated certain submissions
of the adverse party.
In view of the fact that the last decision in this particular
matter was given by the Constitutional Court on 29 August 1988 the
applicant company argues that it had been justified further to await
the outcome of the action against the Federal Republic of Germany. Had
it won this action it would have recovered all lawyer's fees and
therefore the outcome of the action against the lawyer would have been
of no importance for the applicant company.
THE LAW
1. The applicant company complains of the dismissal of its civil
action for damages against the Federal Republic of Germany and also of
the court proceedings concerned. It invokes Article 6 (Art. 6) of the
Convention.
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 may 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 established
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 company also complains
of a violation of its right to a fair hearing, guaranteed by Article
6 para. 1 (Art. 6-1) of the Convention.
However, the Commission cannot find that in the proceedings in
question the applicant company was not given sufficient and adequate
opportunity to submit its case. It can furthermore not find that the
decisions given by the German courts disregard vital evidence or
pertinent arguments so as to amount to an arbitrary denial of justice.
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.
2. The applicant company further complains of the civil proceedings
it had instituted against a lawyer invoking again the right to a fair
trial under Article 6 (Art. 6) of the Convention.
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 Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter ... within
a period of six months from the date on which the final decision was
taken".
In the present case the decision of the Federal Constitutional
Court which was the final decision regarding the subject of this
particular complaint, was given on 29 August 1988, whereas the
application was submitted to the Commission on 5 December 1991, that
is, more than six months after the date of this decision. Furthermore,
an examination of the case does not disclose the existence of any
special circumstances which might have interrupted or suspended the
running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy