AS TO THE ADMISSIBILITY OF
Application No. 12699/87
by H.N.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 15 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
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
13 September 1986 by H.N. against the Federal Republic
of Germany and registered on 20 January 1987 under file N° 12699/87;
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&S
The applicant is a German citizen, born in 1948 and living in
Frankfurt/M.
She has lodged three previous applications which were all
declared inadmissible, namely: No. 9190/80 on 11 March 1982,
No. 10949/84 on 10 December 1986 and No. 12277/86 on 2 March 1987.
The last-mentioned application concerned a complaint of a search
effected in the applicant's house.
The present application concerns labour court proceedings and
the decisions given in these proceedings.
In December 1978 the applicant, who was then working in the
marketing section of a private company D, was given notice on account
of the company's intended close-down. The company shares were taken
over by another company E, which intended to continue the business
activities after a reorganisation. Part of D's staff were taken over
by E, but not the applicant. She therefore brought an action alleging
that her dismissal was not justified for social reasons.
The Frankfurt Labour Court (Arbeitsgericht) dismissed the
action on 20 August 1979. The Regional Labour Court (Landesarbeits-
gericht) confirmed this judgment on 7 August 1980 but on 14 October 1982
the Federal Labour Court (Bundesarbeitsgericht) quashed the previous
decision and sent the case back for a new trial before the Regional
Labour Court. The Labour Court directed that the lower court examine
whether the decision as to which D company staff should be taken over
was left exclusively to the E company, or whether the D company had
been authorised by the E company to decide this matter and had
implicitly undertaken the obligation vis-à-vis its staff to have them
all transferred to the E company. In the latter case it would also
have to be examined whether the applicant had been offered an
acceptable post or whether she had declined any position on the ground
that she did not wish to move to Hannover, the seat of the E company.
On 22 May 1985 the Regional Labour Court confirmed the Labour
Court's judgment of 20 August 1979 insofar as it rejected the
applicant's claim that the dismissal had been unjustified. However, it
ordered the defendant company to pay the applicant DM 11,027.-. The
Court found that there was no evidence to show that the defendant
company had undertaken to transfer all staff including the applicant.
The Court pointed out that, according to the company's manager, Mr. H.,
who was heard as a witness, efforts were made by the company to help its
staff to find a new position with the E company but no binding
promises had been given in this respect. Furthermore, the director of
the E company had stated as a witness that his company had not
authorised the defendant company to make any binding offers concerning
job transfers. These testimonies were corraborated, in the Court's
opinion, by the statements of a further witness, the former chairman
of the works council.
The applicant's complaint to the Federal Labour Court on the
Regional Labour Court's refusal to grant her leave to appeal was
rejected on 15 July 1986 as being inadmissible (unzulässig), the
applicant having failed to show that the decision complained of
diverged from the Federal Labour Court's case-law. Insofar as the
applicant also complained of the Regional Labour Court fixing the
value of the claim, the Federal Labour Court stated that this part of
her appeal had not been submitted under her lawyer's responsibility,
and was therefore - already for that reason - of no relevance.
The applicant also lodged constitutional complaints against
the Regional Labour Court's decision of 22 May 1985 and the Federal
Labour Court's decision of 15 July 1986.
The first of these complaints was rejected by a group of three
judges of the Federal Constitutional Court (Bundesverfassungsgericht)
on 5 March 1986 as offering no prospects of success. It is stated
in the decision that there was nothing to show that the Regional
Labour Court had arbitrarily disregarded any relevant allegations or
arguments submitted by the applicant.
The second complaint was rejected on 3 November 1986 as also
offering no prospects of success.
&_COMPLAINTS&S
The applicant complains that her right to be heard was
violated in the labour court proceedings because the courts
disregarded relevant evidence, i.e. letters of 3 October 1978
addressed by the D company to some employees who were offered
a transfer to the E company. The contents of these letters prove, in
the applicant's opinion, that the D company was in a position to
influence or determine the question of which members of its staff were
to be offered a job in the E company.
The applicant furthermore complains of the length of the
proceedings.
She invokes Articles 6 para. 1, 14, 17, and 18 of the
Convention and Article 1 of the Protocol No. 1.
&_THE LAW&S
The applicant has complained of the decision of the Frankfurt
Regional Labour Court of 22 May 1985, dismissing her claim that her
dismissal from employment in a private company was unjustified. She
has also complained of the Labour Court proceedings.
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 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 her
right under Article 6 para. 1 (Art. 6-1) of the Convention to a fair hearing
was violated because the Labour Court allegedly disregarded certain evidence
contained in letters that were sent by her former employer to certain employees
offering them employment in the E company which took over her employer's
assets. However, the finding of the Regional Labour Court, that vis-à-vis the
applicant her former employer had not undertaken any obligation to provide her
with employment in the E company, was based on the evidence given by several
witnesses. In these circumstances it cannot be found that the assessment of
the evidence by the Regional Labour Court discloses any arbitrariness. The
applicant has not shown that, in order to assess the facts in her case fairly,
the letters in question would have had to be taken into account.
Insofar as the applicant also invokes Article 6 (Art. 6) with regard to
the proceedings before the Federal Labour Court and the Federal Constitutional
Court, it has to be noted that the proceedings in question did not relate to
civil rights in the meaning of that provision. The Federal Labour Court did
not decide on the merits of the applicant's claim, but only whether or not
leave to appeal had wrongly been refused. The Federal Constitutional Court,
when determining in a preliminary examination whether or not a constitutional
complaint is admissible, likewise does not take a decision relating to "civil
rights and obligations" in the sense of Article 6 (Art. 6) of the Convention.
It follows that the application is, to this extent, partly
manifestly ill-founded, partly incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant has further complained of the length of the
labour court proceedings.
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 raise this
complaint before the Federal Constitutional Court and has therefore
not exhausted the remedies available to her under German law.
Moreover, 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 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.
For these reasons, the Commission
&_DECLARES THE APPLICATION INADMISSIBLE.&S
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)