AS TO THE ADMISSIBILITY OF
Application No. 33379/96
by Edgar KLEIN
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 14 January 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 9 January 1996 by
Edgar KLEIN against Germany and registered on 7 October 1996 under file
No. 33379/96;
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, born in 1926, is a German national and residing
in Bad Neuenahr.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
I. In 1982 the Rhineland Westphalia electricity-supply company
instituted proceedings before the Moers District Court (Amtsgericht)
against the applicant and his wife claiming outstanding payments for
electricity supply.
On 29 November 1982 the District Court ordered the defendants to
pay a sum of about DEM 232 as well as interest and turnover tax to the
plaintiff. The Court found that since July 1982 the defendants had
unlawfully reduced their payments for electricity-supply by a
contribution which served as subsidy for the national coal-mining
industry ("Kohlepfennig"). The District Court considered that this
contribution could not be objected to from a constitutional point of
view.
On 24 May 1983 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to entertain their constitutional complaint
(Verfassungsbeschwerde).
II. In 1985 the Rhineland Westphalia electricity-supply company again
instituted proceedings before the Moers District Court against the
applicant claiming outstanding payments.
On 28 April 1986 the District Court ordered the applicant to pay
a sum of about DEM 141 as well as interest to the plaintiff. The Court
found that the applicant had reduced the sums due following the annual
statements of account, challenging the calculation mode as well as the
above-mentioned coal-mining contribution. The Court considered that
both the calculation mode and the contribution could not be objected
to from a constitutional point of view.
On 8 June 1986 the applicant lodged a constitutional complaint
with the Federal Constitutional Court.
On 11 October 1994 the Second Division (Senat) of the Federal
Constitutional Court rendered a decision upon the applicant's
constitutional complaint. The Second Division declared that the
relevant parts of the Act on the Use of EC Coal in the Electricity
Supply (Gesetz über die weitere Sicherung des Einsatzes von
Gemeinschaftskohle in der Elektrizitätswirtschaft), which were
underlying the coal-mining contribution in question, were
unconstitutional. The Federal Constitutional Court quashed the
District Court's decision of April 1986 to the extent that the payment
of sums covering the contribution was concerned and sent the case back
to that Court. The Court further ordered that the legislation in
question, to the extent that it was unconstitutional, should be applied
no longer than 31 December 1995. The Constitutional Court did not
entertain the applicant's complaint about the calculation mode on the
ground that the relevant regulations had meanwhile changed.
In its decision, the Second Division reached the conclusion that
the coal-mining contribution amounted to an inadmissible special levy
(Sonderabgabe).
On 15 February 1995, in the resumed proceedings, the Moers
District Court ordered the applicant to pay a sum of about DEM 80 as
well as interest to the plaintiff. The Court found that, pursuant to
the above legislation which continued to be in force, the applicant had
to pay the above sum representing the coal-mining contribution.
On 22 August 1995 the Federal Constitutional Court refused to
entertain the applicant's constitutional complaint. The applicant
received the decision on 2 September 1995.
COMPLAINTS
The applicant complains about the length of the German court
proceedings and also that, in the proceedings before the Federal
Constitutional Court, he did not have a fair and public hearing, in
particular that the Constitutional Court had violated national and
international law. He invokes Article 6 para. 1 of the Convention.
THE LAW
1. The Commission is not required to decide whether or not the
applicant's complaints about the first set of court proceedings between
1982 and 1983 disclose any appearance of a violation of the Convention.
In accordance with Article 26 (Art. 26) of the Convention, the
Commission may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken. It finds that the final decision
regarding this set of proceedings was given by the Federal
Constitutional Court 24 May 1983, which is more than six months before
the date on which the application was submitted.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Convention that, in the proceedings before the
Federal Constitutional Court, he did not have a fair and public
hearing.
Article 6 para. 1 (Art. 6-1), as far as relevant, reads as
follows:
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing within a
reasonable time by [a] ... tribunal ..."
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 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 (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88; and
Eur. Court HR, Van de Hurk v. the Netherlands judgment of
19 April 1994, Series A no. 288, p. 20, para. 61; Klaas v. Germany
judgment of 22 September 1993, Series A no. 269, p. 17, para. 29).
The Commission, having regard to all material at its disposal,
finds that the applicant's submissions do not disclose any appearance
of a breach of his rights under Article 6 para. 1 (Art. 6-1) in this
respect.
3. As regards the applicant complaint under Article 6 para. 1
(Art. 6-1) about the length of the court proceedings instituted by the
Rhineland Westphalia electricity-supply company in 1985, the Commission
considers that it cannot, on the basis of the file, determine the
admissibility of this complaint. The Commission finds that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Commission's Rules of Procedure, to give notice of this complaint to
the respondent Government.
For these reasons, the Commission
DECIDES TO ADJOURN the examination of the applicant's complaint
about the length of the proceedings ;
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy