AS TO THE ADMISSIBILITY OF
Application No. 21634/93
by R. H.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 19 December 1992
by R. H. against Germany and registered on 7 April 1993 under file No.
21634/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 1 December 1993 to communicate the
application;
- the observations submitted by the respondent Government on
14 March 1994 and the observations in reply submitted by the
applicant on 21 June 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1931 in Bucharest and
living in Offenbach.
He complains of the fairness of civil proceedings.
It follows from the applicant's statements and the documents
submitted that on 2 March 1986 the applicant participated in a lottery
game called "Race Quintet" organised by the public Hessian lottery
administration. The lottery game consisted in predicting the first
three winners in two horse races.
The applicant placed a bet on trotting races A and B. In race
A fifteen horses started and ten reached the winning post; the first
four positions were in the following order: 15-2-6-5. Subsequently
horse no. 6 was disqualified for having galloped when passing the
winning post. The applicant had predicted the winners in the following
order: 15-2-5.
The lottery administration invoked however Section 12 (8) of its
General Participation Conditions which provides:
"If a race has to be cancelled for reasons of force majeure or,
if less than ten horses start or reach the winning post, the
order of the winners among the 15 regular starters is determined
by a draw of lots."
A draw of lots had in fact been carried out and resulted in
another number combination than that of the applicant.
On 9 May 1986 the applicant brought an action against the State
of Hessia, represented by the Hessian Lottery Administration, claiming
a lottery prize in the amount of DM 314,428. At the same time he
requested to be granted legal aid.
On 23 September 1986 legal aid was denied by the Regional Court
(Landgericht) in Wiesbaden on the grounds that the applicant's wife was
a dentist and could advance the court costs for the applicant. In
addition it was stated that the action offered no prospect of success.
In this respect the court referred to Section 12 (8) of the defendant's
General Participation Conditions which it considered had rightly been
applied for the reason that only nine horses had reached the winning
post while the disqualification of the tenth horse for having galloped
was justified.
On 5 November 1986 the applicant was requested to pay the advance
on court fees.
On 27 November 1986 the applicant lodged an appeal (Beschwerde)
against the denial of legal aid. This appeal was rejected on
4 March 1987 by the Court of Appeal (Oberlandesgericht) in Frankfurt
am Main. This court only based its decision on the reasoning that the
action offered no prospect of success.
On 23 March 1987 the applicant was again reminded to pay the
advance on court fees. He complied on 23 April 1987.
Subsequently the action was served on the defendant party on
30 April 1987.
On 24 September 1987 the action was dismissed by the Regional
Court in Wiesbaden.
The court considered that the drawing of the winning numbers by
lots was justified in accordance with Section 12 (8) of the defendant's
General Participation Conditions because out of the ten horses which
had reached the winning post, one had to be disqualified. Contrary to
the applicant's view, the disqualified horse could not be considered
among those who had reached the winning post. Consequently, the
defendant had correctly applied Section 12 (8) of the General
Participation Conditions as without the disqualified horse less than
ten horses had reached the winning post.
The applicant lodged an appeal. On 16 February 1989 the Court
of Appeal in Frankfurt am Main quashed the first instance court's
judgment and granted the action. This court considered that the action
had been lodged on time and was not foreclosed in accordance with
Section 19 of the defendant's General Participation Conditions which
provides for a thirteen week time-limit for the lodging of an action.
The court considered that the delays caused by the legal aid
proceedings could not be imputed to the applicant, in particular as
legal aid had not been refused for lack of "poverty" but for lack of
chances of success. Only after the termination of the legal aid
proceedings had the applicant therefore been obliged to advance the
court costs on which notification of the action to the defendant party
was dependent. This interpretation also did not affect the interests
of the defending party as the applicant's request for legal aid had
been communicated to them and they knew thereby that the applicant
intended to bring an action.
The court further considered that the provision of Section 12 (8)
of the defendant's General Participation Conditions was unclear and
surprising for the defendant's clients and therefore not applicable.
There were, in the court's opinion, no reasons not to consider the
numbers of the first three winning horses for the purpose of
determining who had won the lottery.
The defendant then lodged an appeal on points of law, arguing
that the applicant's action was time-barred.
On 21 March 1991 the Federal Court (Bundesgerichtshof) quashed
the Appellate Court's decision and confirmed the first instance court
judgment. This court left the question open whether the defendant
could rely on Section 12 (8) of its General Participation Conditions.
It considered that in any event the action had been brought out of time
as under Section 19 of the General Participation Conditions a
time-limit of 13 weeks had to be respected as of the date of the
disputed horse race. The court considered that the applicant had
accepted the General Participation Conditions which were referred to
on all gambling vouchers. These conditions had been publicised in an
official bulletin (Staatsanzeiger) of Hessia. They were also available
in all gambling halls. The provision setting out the time-limit could
not be considered to be surprising or inequitable. The defendant had
justified interest in having disputes settled rapidly.
Consequently, the applicant should have brought his action before
2 June 1986. It was true that the applicant had lodged his action
before this date, but in accordance with Sections 253 (1) and 270 (3)
of the Code on Civil Proceedings (ZPO) an action could only be
considered to have been formally lodged when it was also communicated
to the defendant party within a reasonable delay (demnächst). In the
applicant's case communication of the action was not effected before
30 April 1987. Even considering that the applicant first requested
legal aid and that legal aid was denied to him, he could not be
considered to have pursued the matter with the necessary diligence.
His appeal against denial of legal aid had been rejected on
4 March 1987 and the decision had been served on him on 17 March 1987.
On 23 March 1987 the applicant had been reminded of his obligation to
pay an advance on court costs. He had received this reminder on
27 March 1987. On 2 April 1987 he had replied that he was still
looking for a person willing to finance the proceedings and to share
the financial risks of them with him. Eventually the advance on court
costs in the amount of DM 2,113 was paid on 23 April 1987.
The court also pointed out that the applicant had appealed
against the order of 23 September 1986 (communicated on 1 October 1986)
denying legal aid on 28 November 1986, that is more than 8 weeks later.
However, reasonably he could have been expected to lodge the appeal
within two weeks even though no formal time-limit had to be respected.
In all these circumstances the Federal Court considered that the
defendant could invoke Section 19 of its General Participation
Conditions and the action was time-barred.
On 10 June 1992 a group of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) rejected the
applicant's constitutional complaint as offering no prospect of
success.
Insofar as the applicant had complained that the Federal Court
disregarded his allegation that the General Participation Conditions
are not available in all gambling halls the Constitutional Court
remarked that the ordinary court did not take into consideration
irrelevant statements of a party. As the Federal Court had stated that
the General Participation Conditions were referred to in the gambling
vouchers its decision was not based on the finding that these General
Participation Conditions were available in all gambling halls.
The Constitutional Court further considered that the right of
access to a court was not affected by the thirteen weeks time-limit
applied in the applicant's case.
Furthermore it was not arbitrary that the Federal Court
considered that the applicant could and should have lodged his appeal
against the denial of legal aid within a two weeks time-limit.
COMPLAINTS
The applicant considers that his right to a fair hearing was
disregarded in the above proceedings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 December 1992 and registered
on 7 April 1993.
On 1 December 1993 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
14 March 1994. The applicant replied on 21 June 1994, after an
extension of the time-limit fixed for that purpose.
The applicant's request to be granted legal aid was rejected by
the Commission (First Chamber) on 17 May 1994.
THE LAW
The applicant complains of the dismissal of his civil action.
With regard to the judicial decisions of which the applicant
complains, the Commission first points out 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 the present case the applicant alleges a
violation of his right to a fair trial as guaranteed by Article 6
(Art. 6) of the Convention. He considers that in light of the fact
that legal aid was denied to him on the ground that his action offered
no chances of success, while the judgment given in his favour on
16 February 1989 by the Court of Appeal proves the contrary, it was
unfair of the Federal Court to decide that he had not pursued the legal
aid proceedings with adequate diligence.
The respondent Government argue that the Federal Court's
interpretation of the notion "within a reasonable delay" (demnächst)
as employed in Section 270 (3) of the Code on Civil Proceedings (ZPO)
was not in any way arbitrary but conform with jurisprudential
principles. It also took into account the particularities of the
present case in that the Federal Court rightly considered that the
applicant could and should have appealed against the Regional Court's
decision of 23 September 1988 denying legal aid within two weeks while
in fact he did not file the appeal more than eight weeks later. The
Government point out that the Federal Constitutional Court found the
Federal Court's decision unobjectionable from the point of view of
constitutional law.
The Commission likewise considers in these particular
circumstances that it cannot be found that the applicant was denied a
fair hearing by the domestic courts dealing with the matter. Even
taking into account that the applicant had to take a financial risk to
pursue his request for legal aid in second instance, this risk was not
of such importance as to justify a delay of reflection of more than two
months for the applicant's decision whether or not to lodge an appeal.
It follows that there is no appearance of a violation of
Article 6 (Art. 6) of the Convention and the application has to be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy