AS TO THE ADMISSIBILITY OF
Application No. 32009/96
by Thea REUTER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 12 May 1991 by
Thea REUTER against Germany and registered on 25 June 1996 under file
No. 32009/96;
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 resident
in Simmern.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1990 and 1991 the applicant, who owns a house where she lives
in the attics, unsuccessfully instituted eviction proceedings against
Ms. S., the tenant of the apartment on the ground floor of her house.
In 1994 Ms. S. filed an action with the Simmern District Court
(Amtsgericht) against the applicant, claiming a declaratory judgment
to the effect that the renewed notice of termination of her tenancy
contract by the applicant was invalid. The applicant, represented by
counsel, again claimed the eviction of Ms. S.
On 6 April 1995 the Simmern District Court decided that the
tenancy contract between the applicant and Ms. S. had to be continued
for an indefinite period. The Court, having regard to S. 564b and
S. 556a para. 1 of the Civil Code (Bürgerliches Gesetzbuch), found
that, even assuming that the applicant had shown that she needed the
apartment for her own accommodation, Ms. S. could claim the
continuation of the tenancy on the ground that her eviction would
amount to an undue hardship. The Court, taking into account Ms. S.'s
state of health, as established in the previous proceedings and
confirmed in a recent medical certificate, considered that her
interests in staying in the apartment outweighed the applicant's
interests. The Court also observed that the applicant could have
previously moved into an apartment on the first floor, but had
preferred to rent it to third persons.
The rent legislation forms part of the Civil Code (SS. 535
to 580a), which contains rules on the protection of tenants. According
to S. 554a para. 1, the tenant is entitled to object to the termination
of the tenancy and claim its continuation, if such termination of the
tenancy would amount, for the tenant himself or his family, to a
hardship which is not justified, having due regard to the landlord's
legitimate interests. S. 564a para. 1 provides that the landlord can
only terminate a tenancy if he has a legitimate interest to do so. S.
564a para. 2 mentions, inter alia, the example that the landlord needs
the accommodation concerned for his own housing of the housing of one
of his family members.
On 7 November 1995 the Bad Kreuznach Regional Court (Landgericht)
dismissed the applicant's appeal. It confirmed the reasoning of the
District Court. It weighed in detail the applicant's disadvantageous
living situation against the risk that, on account of her poor health,
the then 86-year-old tenant, who had lived in the said apartment for
33 years, would become a person needing care in case of her eviction.
On 18 January 1996 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde).
COMPLAINTS
The applicant complains about the German court decisions
dismissing her claims for an eviction of her tenant Ms. S. She invokes
Articles 2, 5, 6 and 8 of the Convention.
THE LAW
1. The applicant's complaint relate to the refusal, by the German
courts, to permit the termination of a tenancy contract with one of the
applicant's tenants, and the eviction of this tenant.
2. The Commission has first examined the applicant's complaint under
Article 8 (Art. 8) of the Convention.
Article 8 (Art. 8), so far as relevant, provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society ... for the
protection of the rights and freedoms of others."
The Commission recalls that, although the object of Article 8
(Art. 8) is essentially that of protecting the individual against
arbitrary interference by the public authorities, it may also give rise
to positive obligations, particularly the obligation to ensure respect
for private and family life even in the sphere of interpersonal
relations. In this matter as in others a fair balance must be struck
between the general interest and the interests of the people concerned
(cf. Eur. Court HR., Velosa Barreto v. Portugal judgment of 21 November
1995, para. 23, to be published in Series A no. 334).
The Commission recognises that the decisions complained of
prevented the applicant from living in another apartment of the house
owned by her, namely the apartment on the ground floor rented by Ms. S.
However, effective protection of respect for private and family
life does not go so far as to place the State under an obligation to
give a landlord or landlady the right to recover possession of a rented
house or apartment on request and in any circumstances (cf. Velosa
Barreto judgment, para. 24, loc. cit.). The legislation applied by the
German courts pursues the protection of the rights of others, namely
the social protection of tenants.
Both the Simmern District Court and the Bad Kreuznach Court of
Appeal found that, even assuming that the applicant had shown that she
needed the apartment in order to live there, the tenant Ms. S. could
claim the continuation of the tenancy on the ground that her eviction
would amount to an undue hardship. In this respect, the Courts
carefully weighed the applicant's and her tenant's conflicting
interests. Both courts, on the basis of medical certificates, reached
the conclusion that the interests of the then 86-year-old tenant, on
account of her poor health, outweighed the interests of the applicant
as owner of the house concerned.
The applicant's submissions do not disclose any indication that
the German courts acted arbitrarily or unreasonably or failed to
discharge their obligation to strike a fair balance between the
respective interests.
Accordingly, there is no indication of a breach of Article 8
(Art. 8) of the Convention.
It follows that the applicant's complaint under Article 8
(Art. 8) is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. The Commission, considering the applicant's legal position as the
owner of the house in question, has further examined her complaint
under Article 1 of Protocol No. 1 (P1-1).
This provision reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission finds that the restriction on the applicant's
right to terminate her tenant's lease constitutes control of the use
of property within the meaning of the second paragraph of Article 1 of
Protocol No. 1 (P1-1), which pursued a legitimate social policy aim.
Moreover, the Commission finds that the impugned court decisions, taken
in accordance with the legislation on the protection of tenants,
complied with the conditions laid down in Article 1 of Protocol No. 1
(P1-1) (cf., mutatis mutandis, Eur. Court HR., Mellacher v. Austria
judgment of 19 December 1989, Series A no. 169, pp. 25-26, para. 45;
Spadea and Scalabrino v. Italy judgment of 28 September 1995, Series
A no. 315-B, pp. 25-27, paras. 29-41; Velosa Barreto judgment, loc.
cit. paras. 35-37). In the circumstances of the present case, the
Commission, having regard to its above findings under Article 8
(Art. 8) of the Convention, considers in particular that the German
courts duly balanced the interests of the parties to the dispute before
them. Consequently, regard being had to the legitimate aim pursued, the
court decisions in question were not disproportionate in view of the
margin of appreciation permitted under the second paragraph of this
provision. Accordingly, there is no appearence of a breach of Article 1
of Protocol No. 1 (P1-1).
It follows that the part of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2).
4. The Commission further finds that there is no appearance of a
violation of the other Convention rights invoked by the applicant,
namely her rights under Articles 2, 5 and 6 (Art. 2, 5, 6). In
particular, there is nothing to show that the applicant could not duly
present her arguments in the court proceedings or that the proceedings
were otherwise unfair, contrary to Article 6 (Art. 6). It follows that
this part of the application is also manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy