AS TO THE ADMISSIBILITY OF
Application No. 11614/85
by Maria-Theresia EMRICH
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
12 March 1987, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
G. TENEKIDES
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. F. MARTINEZ
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 21 February 1985
by Maria-Theresia EMRICH against the Federal Republic of Germany and
registered on 24 June 1985 under file No. 11614/85;
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 submitted by the applicant, may be
summarised as follows:
The applicant, born in 1936, is a German national and resident
in Wiesbaden. She has studied law and is now a housewife. The
applicant and her husband jointly own an estate in Wiesbaden.
In 1976 the Wiesbaden Municipal Office (Magistrat) permitted
the applicant's neighbours, Mr. and Mrs. K, to construct a duplex
house as well as to raise the level of their building site.
Thereupon, the applicant and her husband complained to the Municipal
Office of a violation of building regulations, inasmuch as the
neighbours had raised the level of their building site and exceeded
the permissible overall height. On 4 April 1978 the Municipal Office
replied that Mr. and Mrs. K had not violated any building regulations
which served the protection of neighbours' interests (nachbarschützende
Vorschriften). The applicant's and her husband's administrative
appeal (Widerspruch) was rejected by the Municipal Office on
12 March 1979.
On 3 July 1980 the Wiesbaden Administrative Court (Verwaltungs-
gericht) dismissed their claim that the Municipal Office should revoke
the neighbours' building permit and order the restoration of the
former situation.
On 3 May 1984 the Hesse Administrative Court of Appeal
(Verwaltungsgerichtshof), upon the appeal (Berufung) of the applicant
and her husband, quashed the Municipal Office's decisions of
4 April 1978 and 12 March 1979. It ordered the Office to take a new
decision as to the raising of the neighbours' estate within the
minimum space between the two buildings (Bauwich). The Court
dismissed the remainder of the appeal and did not grant leave to
appeal. On 23 August 1984 the Federal Administrative Court
(Bundesverwaltungsgericht) rejected the applicant's appeal on points
of law (Revision) as being inadmissible.
On 13 December 1984 the Federal Constitutional Court (Bundes-
verfassungsgericht) dismissed the applicant's constitutional complaint
(Verfassungsbeschwerde), in which she had alleged that the decision of
the Federal Administrative Court to declare her appeal on points of
law inadmissible was incorrect and unfair, as it offered no prospect
of success.
Meanwhile, on 22 November 1984 the Wiesbaden Municipal Office
ordered the neighbours K partly to lower the level of their site
within the minimum space, and informed the applicant thereof.
On 18 January 1985 the Wiesbaden Administrative Court
dismissed the request of the applicant and her husband to execute the
Hesse Administrative Court of Appeal's decision of 3 May 1984 insofar
as it ordered the Municipal Office to take a new decision as to the
raising of the neighbours' estate within the minimum space between two
buildings. The Court referred to the possibility to challenge the
lawfulness of the Municipal Office's new decision of 22 November 1984
in separate proceedings.
The applicant and her husband thereupon filed an
administrative appeal against this decision which the Wiesbaden
Municipal Office dismissed on 30 May 1985. On 5 December 1985 the
Federal Constitutional Court declared the applicant's constitutional
complaint inadmissible on the ground that she had not appealed to the
administrative courts. Her further complaint to the Hesse Court of
Justice (Staatsgerichtshof) was declared inadmissible on 11 June 1986.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the
Convention that the proceedings before the German administrative
courts were unfair and arbitrary. She submits in particular that her
case was dealt with by different rapporteurs at the Administrative
Court and the Administrative Court of Appeal contrary to the general
rules on the assignment of cases to rapporteurs. Moreover, she
alleges that the Federal Administrative Court incorrectly, by decision
of a group of three judges, rejected her appeal on points of law as
inadmissible. She also considers that the allegedly incorrect
decisions of the Courts clearly indicate that they were biased against
her.
2. The applicant complains under Article 1 of Protocol No. 1 that
her property right has been violated by the respective decisions of
the Municipal Office and the administrative courts.
3. She also invokes Articles 3, 8, 13, 14 and 17 of the
Convention in respect of her above complaints.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the proceedings before the administrative courts were
unfair.
Article 6 para. 1 (Art. 6-1) provides that "in the determination of his
civil rights and obligations ... everyone is entitled to a fair and
public hearing ... by an independent and impartial tribunal
established by law".
The Commission notes that, in the present case, the applicant
brought administrative proceedings challenging the lawfulness of her
neighbours' building permit and requesting that the administrative
authority concerned should order the partial demolition of their
building and the restoration of the former level of the building site.
These administrative proceedings concerned the neighbours' right
under public law to construct a certain building on their real estate
and the supervisory functions exercised by the administrative
authority in respect of the neighbours. The question, therefore,
arises whether or not these proceedings involved a determination of
the applicant's civil rights and obligations within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention (cf. mutatis mutandis, Eur. Comm. H.R.,
No. 7941/77, Dec. 1.5.79, D.R. 16 p. 88, Eur. Court H.R., Benthem judgment of
23 October 1985, Series A no. 97, paras. 32 et seq.). However, the Commission
does not find it necessary to settle this issue as the applicant's complaints
under Article 6 para. 1 (Art. 6-1) of the Convention, in any event, have to be
rejected for the following reasons.
a) As regards the applicant's complaints concerning the proceedings before
the Administrative Court and the Administrative Court of Appeal in 1980 to 1984
the Commission is not required to decide whether or not the facts alleged by
the applicant disclose any appearance of a violation of Article 6 (Art. 6) 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 recalls
that the mere fact that an applicant has submitted his case to the various
competent courts does not of itself constitute compliance with this rule. It
is also required that the substance of any complaint made before the Commission
should have been raised during the proceedings concerned (cf. No. 8257/78,
Dec. 10.7.78, D.R. 13 p. 248).
In the present case the applicant has lodged a constitutional
complaint with the Federal Constitutional Court. However, she
complained only of the allegedly incorrect decision of the Federal
Administrative Court and of the unfairness of the proceedings before
that Court. She did not raise, either in form or in substance, any
complaints as regards the proceedings before the Administrative Court
and the Administrative Court of Appeal. Moreover, an examination of
the case does not disclose the existence of any special circumstances,
which might have absolved the applicant from raising these complaints
in the proceedings referred to.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and her complaints
under Article 6 para. 1 (Art. 6-1) of the Convention as regards the proceedings
before the Administrative Court and the Administrative Court of Appeal must be
rejected under Article 27 para. 3 (Art. 27-3+26) in conjunction with Article 26
of the Convention.
b) With regard to the applicant's complaints of the allegedly
incorrect decision of the Federal Administrative Court the Commission recalls
first 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; No.
10000/82, Dec. 4.7.83, D.R. 33 pp. 247, 255/256).
It is true that in this respect the applicant complains under
Article 6 para. 1 (Art. 6-1) of the Convention that her appeal on points of law
was not considered in fair proceedings by an impartial tribunal
established by law. However, the applicant has, apart from the
general allegation of an incorrect decision, not substantiated that
the Court was biased against her or that the proceedings were
otherwise improperly conducted. The Commission, therefore, finds no appearance
of a violation of her rights set forth in Article 6 para. 1 (Art. 6-1) . It
follows that her complaint in respect of the proceedings before the Federal
Administrative Court is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
c) As regards the applicant's complaint that the further
proceedings in 1985 were incorrect and unfair the Commission is also
not required to decide whether or not the facts alleged by her
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 according to S. 90 of the Federal
Constitutional Court Act (Bundesverfassungsgerichtsgesetz) a
constitutional complaint can generally only be lodged after all
remedies available under German law have been exhausted. In the
present case, on 5 December 1985 the Federal Constitutional Court
declared the applicant's constitutional complaint inadmissible on the
ground of non-exhaustion of ordinary remedies. The Commission recalls
its constant jurisprudence according to which there is no exhaustion
of domestic remedies in the sense of Article 26 (Art. 26) of the Convention
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 requirement, under the
Federal Constitutional Court Act, to exhaust ordinary remedies. She
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 that might have absolved the
applicant, according to the generally recognised rules of
international law, from exhausting the domestic 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 1 of
Protocol No. 1 (P1-1) that the respective proceedings violated her right to
property.
It is true that Article 1 of Protocol No. 1 (P1-1) guarantees to
everyone "the peaceful enjoyment of his possessions".
However, the Commission is not required to decide whether or
not the facts alleged by the applicant in this respect disclose any
appearance of a violation of this provision as it has already found
that, in the present case, the applicant, in her constitutional
complaint in 1984, only complained that the proceedings before
the Federal Administrative Court were incorrect and unfair. She did
not raise, either in form or in substance, the complaint of a
violation of her right to property under S. 14 of the Basic Law
(Grundgesetz) which corresponds to Article 1 of Protocol No. 1 (P1-1).
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and her complaint under
Article 1 of Protocol No. 1 (P1-1) must be rejected under Article 27 para.
3 in conjunction with Article 26 (Art. 27-3+26) of the Convention.
3. The applicant also invokes Articles 3, 8, 13, 14 and 17
(Art. 3, 8, 13, 14, 17) of the Convention in respect of her complaints.
However, the Commission finds no indication of a violation of her rights under
these Articles of the Convention. It follows that this part of the application
is also 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)