AS TO THE ADMISSIBILITY OF
Application No. 12754/87
by E.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 3 March 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
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
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 February 1987
by E. against the Federal Republic of Germany and registered
on 26 February 1987 under file N° 12754/87;
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 applicant is a German citizen, born in 1926 and living in
F.-O. He is represented in the proceedings before the Commission by
Curt Freiherr v. Stackelberg, a lawyer with a right of audience
before the Federal Court (Bundesgerichtshof), whose practice is in
Karlsruhe.
1. In two previous applications the applicant complained of the
length of three sets of criminal proceedings instituted against him
and his wife by the Public Prosecutor in Trier, Saarbrücken and
Cologne (application No. 8130/78) and of the refusal to grant him
compensation for detention on remand in the Cologne proceedings which
had been discontinued in 1977 (application No. 9108/80). As regards
application No. 8130/78, the European Court of Human Rights (Court)
decided on 15 July 1982 that the length of the Trier and Cologne
proceedings constituted a breach of Article 6 para. 1 of the
Convention (Series A, Vol. 51). On 21 June 1983 the Court refused to
grant the applicant just satisfaction on account of alleged material
loss and non-pecuniary damage stating that as regards material loss
there was no causal connection between the applicant's claims and the
breach of Article 6 para. 1 and as regards non-pecuniary damage that
the finding of a violation already furnished sufficient just
satisfaction taking into account that the Trier Regional Court
(Landgericht) mitigated the applicant's sentence in view of the
inordinate length of the proceedings and that the Cologne proceedings
had been discontinued (Series A, Vol. 65, pp. 8-11, paras. 15-24).
The Court did not consider it necessary to defer its judgment as had
been requested by the applicant pending the outcome of an action for
damages lodged by him with the Trier Regional Court on 16 April 1964.
Application No. 9108/80 was rejected as being manifestly ill-founded
on 14 May 1981.
2. In September 1983 the applicant lodged another application,
No. 10804/84, which related to the aforementioned action for damages
instituted by the applicant before the Trier Regional Court on 16
April 1964. With that action the applicant had claimed a declaratory
judgment to the effect that the defendant State Rheinland-Pfalz was
responsible for the damage caused to him by investigation measures
through which his business partners were informed of the suspicion
that he had defrauded them.
The civil proceedings had been stayed from 1966 to 1976
pending the outcome of the criminal proceedings. On 23 March 1979 the
Trier Regional Court had dismissed the action stating that in view of
the fact that meanwhile the applicant had been convicted in the Trier
proceedings (namely on 17 March 1972 and the Federal Court rejected the
applicant's petition for a review on a point of law on 11 February 1976)
there was nothing to show that the investigating authorities had acted
unlawfully or arbitrarily in investigating the matter and hearing the
applicant's business partners and creditors as witnesses. Insofar as
the applicant had also complained of the length of the criminal
proceedings the Court pointed out that the action only related to
damage allegedly caused by the investigating authorities by conveying to
his creditors the suspicion that he defrauded them. Furthermore the
Court stated that in any event the applicant had to show that the
authorities acted arbitrarily. The mere allegation that criminal
proceedings were unreasonably long did not denote any misconduct in
office (Amtspflichtverletzung).
The applicant had then lodged an appeal (Berufung) raising in
his submissions of 25 September 1979 to the appellate court additional
claims for a declaratory judgment to the effect that the defendant had
to pay damages caused:
- by his detention on remand in the Trier and Saarbrücken
proceedings for four and a half years;
- by the length of the Trier criminal proceedings which
lasted more than 16 years and were thus unreasonable.
On 8 October 1980 the Koblenz Court of Appeal (Oberlandesgericht)
gave a default judgment against the applicant dismissing his appeal.
This judgment was reconsidered and maintained by decision of
4 March 1981. The Court of Appeal stated in this decision that the
original claims were unfounded. The additional claims were considered
as a new action which the appellate court refused to admit for reasons
of procedural economy (nicht sachdienlich).
The applicant had then lodged an appeal to the Federal Court
(Bundesgerichtshof). With this appeal he submitted the judgment given
on 15 July 1982 by the European Court of Human Rights and alleged that
the question of whether or not he was entitled to claim damages
because of the breach of Article 6 para. 1 of the Convention had first
to be decided under national law. On 29 November 1982 the Federal
Court refused to admit the appeal insofar as it concerned the
applicant's original claims. The remainder of the appeal (concerning
the additional claims) was admitted.
The applicant had lodged a constitutional complaint against
the Federal Court's decision of 29 November 1982 requesting the
Federal Constitutional Court (Bundesverfassungsgericht) to quash the
decision complained of insofar as it rejected his appeal and to order
the Federal Court to deal with this appeal. On 2 March 1983 a group
of three judges of the Federal Constitutional Court had rejected the
constitutional complaint as offering no prospects of success. The
decision was served on the applicant's counsel on 8 March 1983.
The applicant then complained to the Commission of the Federal
Court's decision of 29 November 1982 and of the dismissal of his
original claims with regard to which the decision complained of was
the final one. He considered it to be unfair that despite the
unreasonable length of the criminal proceedings the civil courts
expected him to state in detail and to prove which particular
investigating measures had been unlawful. He also complained of the
length of that part of the civil proceedings which was terminated by
the Federal Court's decision of 29 November 1982. He alleged that he
already raised this latter complaint implicitly in his submission to
the Federal Constitutional Court.
This previous application No. 10804/84 was rejected by the
Commission on 13 December 1984 as being manifestly ill-founded
insofar as the applicant had complained of the decisions given in the
proceedings concerning his action for damages and for non-exhaustion
of domestic remedies insofar as he complained of the length of these
proceedings. It was found that the applicant had failed to raise this
particular complaint before the Federal Constitutional Court.
3. The present application also relates to the applicant's civil
action for damages. The proceedings relating thereto were not
terminated by the Federal Court's decision which was the object of the
previous application No. 10804/84 as this Court admitted that part of
the applicant's appeal which concerned his additional claims raised in
second instance before the Koblenz Court of Appeal.
On 7 April 1983 the Federal Court gave a decision with
regard to the admitted part of the applicant's appeal against the
appellate court's judgment of 4 March 1981. It quashed this judgment
to the extent that it had confirmed the dismissal of the applicant's
additional claims and sent the case back for a new hearing and
decision on these new claims. The Federal Court pointed out that the
applicant had already in first instance referred to Article 6 para. 1
of the Convention and to the length of the investigation proceedings.
The additional claims raised in second instance were therefore not
based on completely new allegations and it was therefore appropriate
(sachdienlich) to deal with these claims in the pending proceedings.
The Federal Court further stated that a claim for compensation for the
applicant's detention on remand was probably lodged out of time but
the claim for compensation on account of the length of the proceedings
had to be determined.
Following the Federal Court's decision of 7 April 1983 the
Koblenz Court of Appeal again considered the applicant's alleged
additional claims for damages caused:
- by his detention on remand in the Trier and Saarbrücken
proceedings for four and a half years;
- by the length of the Trier criminal proceedings which
the European Court of Human Rights had judged to be
unreasonable in the decision of 15 July 1982.
It appears that at his request the applicant was granted
extensive time-limits to revise his arguments and substantiate his
allegations following the judgment of 21 June 1983 by the European
Court of Human Rights under Article 50 of the Convention.
On 23 January 1985 the Court of Appeal decided to maintain
the judgment by default given previously against the applicant on
8 October 1980.
The Court of Appeal found that the alleged compensation claim
for the applicant's detention on remand in the Trier and Saarbrücken
proceedings was time-barred as it had not been raised within three
years after the applicant's release in January 1974. In any event the
claim was unfounded as the applicant had neither shown that a public
official had committed misconduct in office nor that any concrete
damage was caused to him by any such alleged misconduct.
As to the alleged damage caused by the length of the Trier
proceedings, the Court of Appeal stated that lawyers' fees and
expenses incurred by the applicant did not depend on the length of the
proceedings but on the complexity of the case and the amount of work
involved and the days spent in court defending the applicant at oral
hearings. Therefore it did not matter that there had been periods of
inactivity or other pauses that unduly prolonged the proceedings. The
Court of Appeal furthermore considered that a loss of earnings had not
been substantiated. It also referred in this respect to the Article 50
judgment of 21 June 1983 where it is stated in para. 20: "the alleged
financial losses of Mr. and Mrs. Eckle result from the very existence
and outcome of the prosecutions brought against them. There is
nothing in the evidence submitted to support the view that the
asserted damage was attributable to the failure to comply with the
requirements of Article 6".
The applicant's appeal to the Federal Court was declared
inadmissible on 19 December 1985 as raising no issue of general
interest and being without prospects of success.
The Court confirmed the appellate court's finding that the
alleged first claim was time-barred and in any event unsubstantiated.
Furthermore it stated that the damage allegedly caused by the length
of the Trier proceedings was likewise not substantiated.
The applicant then lodged a constitutional complaint alleging
that the civil courts wrongly and arbitrarily dismissed his action.
He also complained in a general manner and without further details
that it violated fundamental rights to deprive him of his claim for
such a long time.
On 25 August 1987 a group of three judges of the Federal
Constitutional Court rejected the applicant's complaint as offering no
prospects of success. The applicant was imposed a fee of 300.- DM.
It is stated in the decision that the Federal Court's decision was
based on ordinary and not constitutional law and did not disclose any
arbitrariness.
COMPLAINTS
The applicant complains that the German courts wrongly
dismissed his action. He argues that the time-limit of three years
for raising the claim for compensation for his detention on remand did
not start with his release from detention but only in the moment when
the warrant of arrest was set aside in September 1977. To decide
otherwise violated the principle of a fair trial.
This principle was likewise violated in that the requirements
of the civil courts with regard to his obligation to substantiate his
claim were too strict. The applicant invokes Articles 5 para. 5 and 6
para. 1 of the Convention.
THE LAW
1. The applicant complains of the dismissal of his civil court
action claiming damages from the Land Rheinland-Pfalz and also of the
court proceedings concerned.
With regard to the judicial decisions 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
that the denial of his alleged claims for compensation on account of
detention on remand and the length of criminal proceedings violated
Articles 5 para. 5 and 6 para. 1 (Art. 5-5, 6-1) of the Convention.
However, neither the domestic court nor the Commission in the
previous application matter relating to the criminal proceedings
against the applicant found that the applicant's detention on remand
violated any of the provisions set out in Article 5 paras. 1-4 (Art.
5-1, 5-4) of the Convention. Consequently the applicant has no claim
under Article 5 para. 5 (Art. 5-5) of the Convention. As to the
alleged violation of Article 6 para. 1 (Art. 6-1) the applicant has
failed to substantiate it. He has not shown that the German courts
disregarded evidence offered by him or disregarded his submissions.
His arguments do in reality mean that the courts committed errors of
law and fact. Such allegations are, however, as stated above,
irrelevant.
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 further seems to complain of the length of the
proceedings before the civil courts.
It is true that Article 6 para. 1 (Art. 6-1) of the Convention
secures to everyone the right to have his civil rights decided within
a reasonable time.
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.
In the present case the applicant failed to substantiate the
present complaint in his submissions to the Federal Constitutional Court
which consequently considered the constitutional complaint as being
directed only against the Federal Court's decision of 19 December 1985.
In these circumstances the applicant cannot be considered to have
exhausted the remedies available to him 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 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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)