AS TO THE ADMISSIBILITY OF
Application No. 29754/96
by Ingrid and Hans SCHMITT
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
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 December 1995
by Ingrid and Hans SCHMITT against Germany and registered on
8 January 1996 under file No. 29754/96;
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 applicants are German nationals and a married couple. They
are resident at Petersdorf. In the proceedings before the Commission,
they are represented by Mr. C. Freiherr von Stackelberg, a lawyer
practising in Karlsruhe.
In 1988 Mr. W. instituted proceedings before the Augsburg
Regional Court (Landgericht), claiming payment of about DM 730,000 and
interest, namely amounts of money which the applicants had allegedly
fraudulently obtained between 1980 and 1988 while the first applicant
had been living together with the plaintiff. The plaintiff alleged
that the first applicant had falsely told him that she had separated
from her husband and had introduced the second applicant as her cousin;
she had claimed to be wealthy and to be in receipt of a high capital
income. He had made the payments to the first applicant upon her offer
to invest it under advantageous conditions. The defendants denied
having defrauded the plaintiff and also claimed various single items
of expenditure. In these and the following proceedings the applicants
were represented by counsel.
On 19 September 1991 the Augsburg Regional Court convicted the
first applicant of fraud, and the second applicant of having acted as
accomplice to fraud.
On 8 March 1993 the Augsburg Regional Court ordered the
applicants to pay to the plaintiff a sum of money amounting to about
DM 585,562.10 and interest. The Regional Court awarded this sum under
the head of tort, finding that the first applicant had obtained from
the plaintiff repayable sums of money amounting to altogether
DM 682,648.13 without having ever intended to pay these amounts back.
Repayments of DM 72,086,03 and a DM 25,000 loan given by the first
applicant to the plaintiff were deducted. In its evaluation of
evidence, the Regional Court had regard to various documents relating
to the payments made by the plaintiff to the first applicant. The
Regional Court considered that the applicants had failed to prove their
allegation that the loan document had been a fictitious contract.
While it was not in dispute that the plaintiff, in his own earlier
divorce proceedings, had concealed his assets by, inter alia,
concluding fictitious contracts with the first applicant, the
applicants had not expressly alleged and had not offered any proof that
the loan document formed part of these fictitious transactions. In
this respect the Regional Court observed that a loan contract was not
a suitable means of concealing assets. Moreover, by merely denying the
receipt of the amounts in question, the applicants had not been able
to refute the presumption of payment based on the loan document. Some
further payments made by the plaintiff to the first applicant had been
proved on the basis of bank statements or on the basis of the
applicants' statements in the criminal proceedings against them.
Moreover, to the extent that the applicants admitted the receipt of
further payments, but claimed that the plaintiff had been bound by
contract or that the moneys were used for common expenditure, they had
failed to furnish proof of their allegations. In this respect, the
Regional Court observed that in view of the amount of some of the
payments, namely more than DM 100,000 or DM 55,000, respectively, the
assumption that they had been made to cover household expenditure was
not very likely. The Regional Court, having regard to the applicants'
further submissions on payments made to the plaintiff, found that they
had failed to prove the payment of sums exceeding the above-mentioned
amounts.
On 16 February 1994 the Munich Court of Appeal (Oberlandes-
gericht) dismissed the applicants' appeal (Berufung). The Court of
Appeal, having considered the applicants' appeal submissions, confirmed
the first instance court's findings.
The Court of Appeal considered in particular that the first
applicant had defrauded the plaintiff; the question of whether the
plaintiff had been aware of the second applicant's true relationship
with the first applicant had been only one of the elements showing her
intention to deceive the plaintiff. However, there was further
corroborating evidence. The Court of Appeal noted in particular the
applicants' firm denial, following the parties' separation in 1988, of
any obligation to pay back the amounts of moneys obtained from the
plaintiff. The applicants had also failed to comment on various other
circumstances, i.e. the undisputed payment of some of the sums
involved, as confirmed by the applicants' conviction, as well as the
fact that the first applicant had immediately used some of the sums to
cover her own debts.
Furthermore, the Court of Appeal, in assessing the evidence
before it, found that the deception as to the second applicant's status
confirmed the applicants' fraudulent intentions. In particular, in the
first instance proceedings, the applicants had admitted having
introduced the second applicant as the first applicant's cousin. This
statement had not been validly withdrawn. The applicants had failed
to show any factual circumstances to prove that the plaintiff had any
doubts in this regard. Their supposition that the plaintiff had been
in a position to realise the second applicant's identity at the very
beginning of their relationship was a mere speculation and as such not
susceptible of proof. In any event, the applicants had stated in the
course of the first instance proceedings that, when the second
applicant was introduced to the plaintiff some four to five years
later, the plaintiff had still not been aware of his identity. The
requests for the taking of evidence as to whether the plaintiff, in the
context of his divorce proceedings, had been in a position to discover
that the first applicant was still married and had no own financial
means, was refused on the ground that the applicants' submissions on
this point were inconclusive. Moreover, the Court of Appeal noted
that, in the course of the criminal proceedings, all witnesses had
confirmed that the second applicant's identity was to be concealed from
the plaintiff. The applicants had failed to comment on these findings
in the civil proceedings. The Court of Appeal refused the applicants'
request to hear a witness on the question of the plaintiff's general
knowledge about the first applicant's family situation as the request
to summon the witness had not in any way referred to the crucial
question whether the plaintiff had been aware, in 1985 or earlier, that
the second applicant was the husband of the first applicant and that
he had the power to dispose of the moneys in the relevant account.
As regards the applicants' defence that substantial amounts had
been used as expenditure for the plaintiff's and her living, in
particular for expensive travelling, the Court of Appeal found that the
applicants had failed to show that the amounts claimed by the plaintiff
had been transferred to her to cover the said expenditure.
As regards the second applicant's joint and several liability
(Gesamtschuldnerschaft), the Court of Appeal found that he had
supported the first applicant in defrauding the plaintiff.
On 7 February 1995 the Federal Court of Justice
(Bundesgerichtshof) refused to accept the applicants' appeal on points
of law (Revision). The Federal Court of Justice stated that the case
did not raise any question of fundamental importance and offered no
prospect of success.
According to S. 554b of the German Civil Code (Zivilprozeß-
ordnung), in disputes concerning pecuniary claims exceeding DM 60,000,
the court of cassation, with a two-third majority, may refuse
acceptance of an appeal on points of law if the case does not raise any
question of fundamental importance.
On 13 March 1995 the applicants lodged a constitutional complaint
(Verfassungsbeschwerde) with the Federal Constitutional Court
(Bundesverfassungsgericht), alleging that the civil court decisions
infringed their constitutional rights.
Sitting as a panel of three members, on 16 June 1995 the Third
Section of the Second Division (dritte Kammer des Zweiten Senats) of
the Federal Constitutional Court declined to accept the case for
adjudication. In its summary decision the Federal Constitutional Court
referred to S. 93b, taken in conjunction with S. 93a, of the Federal
Constitutional Court Act (Gesetz über das Bundesverfassungsgericht),
in the version of 11 August 1993. The decision was notified to the
second applicant on 28 June 1994.
According to Article 93 para. 1 (4a) of the Basic Law
(Grundgesetz) the Federal Constitutional Court rules on constitutional
complaints which may be lodged by any person who considers that the
public authorities have infringed one of his or her fundamental rights
or one of his or her rights as guaranteed under Articles 20 (4), 33,
38, 101, 103 and 104 of the Basic Law.
The composition and functioning of the Federal Constitutional
Court are governed by the Federal Constitutional Court Act.
SS. 90 to 96 concern constitutional complaints. S. 90 para. 1
determines the right to bring such proceedings in line with Article 93
para. 1 (4a) of the Basic Law. In its paragraph 2, it lays down a rule
on the exhaustion on ordinary remedies. Any complaint has to be
reasoned in accordance with S. 92.
S. 93a para. 1 provides that a constitutional complaint requires
acceptance prior to a decision (Annahme zur Entscheidung). According
to paragraph 2 of S. 93a, a constitutional complaint shall be accepted
if (a) it raises questions of fundamental importance from a
constitutional point of view, or (b) if such acceptance is necessary
for the protection of the rights enumerated in S. 90 para. 1; this may
also be the case if the refusal of acceptance would cause the
complainant a particularly serious prejudice. S. 93d contains further
procedural rules, including the rule that the decision to decline
acceptance does not require any particular reasoning.
S. 95 provides that if a constitutional complaint is upheld, the
decision shall state which provision of the Basic Law has been
infringed and by which act or omission. If a decision is concerned,
the Federal Constitutional Court shall quash the decision.
COMPLAINTS
1. The applicants complain under Article 6 paras. 1 and 3 (d) of the
Convention about the German court decisions. They also submit that the
proceedings before the Munich Court of Appeal were unfair. In
particular the Court of Appeal unduly disregarded their requests to
take further evidence as to the plaintiff's awareness of the second
applicant's status. Moreover, in their view, the Court of Appeal
should have taken evidence on the question whether some of the amounts
involved had been used, in agreement with the plaintiff, for their
common living. Finally, the Court of Appeal erroneously considered
that the second applicant's general support of the first applicant
justified his joint and several liability.
2. The applicants further complain under Article 6 para. 1 about the
lack of reasoning in both the decisions of the Federal Court of Justice
of 7 February 1995 and of the Federal Constitutional Court of
16 June 1995.
THE LAW
1. The applicants complain under Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention about the German court decisions
and also of the proceedings concerned.
2. With regard to the judicial decisions of which the applicants
complain, 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-A, 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).
3. As regards their complaint about the alleged unfairness of the
proceedings before the Munich Court of Appeal, the applicants rely on
Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention.
The Commission has examined the applicants' arguments regarding
the civil compensation case brought against them under Article 6
para. 1 (Art. 6-1) which, so far as relevant, provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ..."
As regards the applicant's complaints about the taking and
evaluation of evidence, the Commission recalls that it is not for the
Convention organs to substitute their own assessment of the facts for
that of the domestic courts and, as a general rule, it is for these
courts to assess the evidence before them as well as the relevance of
the evidence which the defendants seek to adduce. The task under the
Convention is to ascertain whether the proceedings in their entirety
were fair (cf., mutatis mutandis, Eur. Court HR., Bricmont v. Belgium
judgment of 7 July 1989, Series A no. 158, p. 31, para. 89; Vidal v.
Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33,
para. 33).
The applicants submit in particular that the Court of Appeal
unduly disregarded their requests to take further evidence as to the
plaintiff's awareness of the second applicant's status. Moreover, in
their view, the Court of Appeal should have taken evidence on the
question whether some of the amounts involved had been used, in
agreement with the plaintiff, for their common expenditure.
The Commission notes that the Augsburg Regional Court, in its
judgment of 8 March 1993 upheld the plaintiff's claims in tort against
the applicants for repayment of sums of money previously transferred
to the first applicant. This judgment was confirmed by the Munich
Court of Appeal upon the applicants' appeal.
The Commission finds that the respective courts carefully
examined the applicants' submissions to disprove the plaintiff's
allegations of tort and to establish counter-claims or other reasons
warranting a reduction of the sums claimed. The applicants,
represented by counsel, had adequate opportunity to put forward their
arguments and request the taking of any relevant evidence. To the
extent that the Munich Court of Appeal did not take evidence as
requested by the applicants, the Court of Appeal gave reasons why it
had considered the applicants' submissions inconclusive or irrelevant.
Having regard to all circumstances, the Commission finds no
sufficient grounds to conclude that the Court of Appeal's taking of
evidence in the applicants' case was incompatible with Article 6
(Art. 6).
4. The application further relates to the alleged lack of a
sufficient reasoning in both the decision of the Federal Court of
Justice refusing acceptance of the applicants' appeal on points of law
as well as in the decision of the Federal Constitutional Court,
according to which it declined to accept their constitutional
complaint. The applicants invoke Article 6 para. 1 (Art. 6-1).
a. The Commission recalls that Article 6 para. 1 (Art. 6-1) obliges
the courts to give reasons for their judgments, but cannot be
understood as requiring a detailed answer to every argument (cf. Eur.
Court HR, Ruiz Torija and Hiro Balani v. Spain judgments of 9 December
1994, Series A nos. 303 A/B, p. 12, para. 29 and pp. 29-30, para. 27,
respectively). However, the Commission has already found that, if the
relevant domestic law authorises a superior court to reject an appeal
on the ground that it raises no legal issue of fundamental importance
and offers no prospect of success, it may be sufficient for that court
simply to refer to the provision authorising this procedure (cf.
No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240; see also No. 20335/92,
Dec. 6.9.95; No. 28631/95, Dec. 15.5.96; not published and
No. 29753/96, Dec. 26.11.96, not published).
In the instant case, the Commission observes that the Federal
Court of Justice, as authorised under S. 554b of the German Civil Code,
refused to accept the applicants' appeal on points of law, stating that
the case did not raise any question of fundamental importance and
offered no prospect of success.
In these circumstances the Commission, having regard to the
particularities of the proceedings regarding an appeal on points of
law, considers that there is no appearance that the Federal Court of
Justice did not comply with Article 6 para. 1 (Art. 6-1).
b. As regards the proceedings before the Federal Constitutional
Court, the Commission recalls that such proceedings come within the
scope of Article 6 para. 1 (Art. 6-1) of the Convention, where their
outcome is decisive for civil rights and obligations (cf. Eur. Court
HR, Süßmann v. Germany judgment of 16 September 1996, para. 41, to be
published in Reports 1996). In the present case the dispute before the
civil courts concerned the applicants' pecuniary liabilities towards
a third person, i.e. civil obligations within the meaning of Article
6 (Art. 6) (cf. Süßmann judgment, loc cit., para. 42). The complaint
proceedings before the Federal Constitutional Court could have been
directly decisive for the dispute over the applicants' civil
obligations, had the constitutional complaint been accepted for
adjudication and further been successful. However, the third Section
of the Second Division, sitting as a panel of three judges, had
declined to accept the applicants' constitutional complaint without
giving reasons as to the merits of the submissions made by them. The
question therefore arises whether these proceedings involved a
"determination" of the applicants' obligations (cf., a contrario,
Süßmann judgment, loc. cit., paras. 43-45). However, this matter need
not be resolved, as this aspect of the application is anyway
inadmissible.
The Commission notes that the Federal Constitutional Court
decided to decline acceptance of the applicants' case on the basis of
S. 93b, in conjunction with S. 93a of the Federal Constitutional Court
Act. In its decision, reference was made to these legal provisions.
The Commission also considers that, taking into account the
particular features of the constitutional complaint proceedings, there
is no appearance that the Federal Constitutional Court did not comply
with Article 6 para. 1 (Art. 6-1).
In sum, the Commission finds that the various matters raised by
the applicants, taken individually or cumulatively, did not result in
rendering unfair, for the purposes of Article 6 para. 1 (Art. 6-1), the
civil proceedings against the applicants.
It follows that the application is 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.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy