AS TO THE ADMISSIBILITY OF
Application No. 13550/88
by Walter SCHRAFT
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 9 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
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 18 January 1988
by Walter SCHRAFT against the Federal Republic of Germany and registered
on 26 January 1988 under file No. 13550/88;
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
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
The applicant, born in 1931, is a German national and resident
at Renningen.
His previous Applications No. 9524/81 concerning court
proceedings in 1981 and 1982 and No. 13342/87 concerning the challenge
of a local building plan were declared inadmissible by the Commission
on 4 October 1982 and 4 July 1988 respectively.
The present application concerns two different sets of
proceedings.
I
In 1983 the applicant raised objections to the request of the
Renningen Water Board (Wasserversorgungsgruppe) for permission to
produce ground water from a well at Renningen. He submitted that the
envisaged production would prejudice his estate at a distance of 600m.
The Böblingen Administrative Office (Landratsamt) competent to grant
the permission concerned, having regard to a technical expert opinion
of the Regional Geological Authority (Geologisches Landesamt), granted
the permission on 27 September 1984. The applicant's appeal
(Widerspruch) remained unsuccessful.
On 18 June 1986 the Stuttgart Administrative Court
(Verwaltungsgericht), having held an oral hearing, dismissed the
applicant's action to revoke the permission. The Court found in
particular that the applicant had failed to prove that the production
of ground water from the well in question could cause damage to his
estate. The Court had, in this respect, regard to the technical
expert opinion of 1984, a supplementary opinion given by an official
expert (Amtssachverständiger) and the expert's further explanations at
the hearing of 18 June 1986.
On 31 October 1986 the Baden Wuerttemberg Administrative Court
of Appeal (Verwaltungsgerichtshof), having regard to the parties'
written submissions, unanimously dismissed the applicant's appeal
(Berufung). It considered that neither the taking of further
evidence nor an oral hearing was necessary. The Court found in
particular that the fact that the expert's submissions at the hearing
had not been recorded did not render the proceedings unfair on the
ground that the applicant had been able to comment thereupon at the
hearing and the Administrative Court had delivered its judgment at the
close of the hearing. Moreover, the Court considered that the
applicant, having no expert knowledge, had failed to substantiate his
objections to the expert opinion. The Court did not grant leave to
appeal on points of law (Revision).
On 20 January 1987 the Baden Wuerttemberg Administrative Court
of Appeal dismissed the applicant's challenge of its judges. The
Court of Appeal found that the statement in its decision concerning
the applicant's expert knowledge obviously did not concern his
intelligence in general.
On 6 April 1987 the Federal Administrative Court (Bundes-
verwaltungsgericht) dismissed the applicant's request for leave to
appeal (Nichtzulassungsbeschwerde).
On 27 July 1987 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) concerning the main administrative
court proceedings as offering no prospect of success. On 27 August 1987
it refused to admit his constitutional complaint as regards the
decision of 20 January 1987 partly as being inadmissible, partly as
offering no prospect of success.
II
On 26 January 1983 the Leonberg Tax Office (Finanzamt)
dismissed the applicant's request to have the purchase tax on his real
estate reduced retroactively.
On 12 November 1986 the Baden Wuerttemberg Tax Court
(Finanzgericht) dismissed the applicant's action concerning his
purchase tax. On 22 July 1987 the Federal Tax Court (Bundesfinanzhof)
dismissed the applicant's request for leave to appeal on points of law
(Nichtzulassungsbeschwerde).
On 5 November 1987 the Federal Consitutional Court refused to
admit the applicant's constitutional complaint of the tax proceedings
as offering no prospect of success.
COMPLAINTS
1. The applicant complains that the decisions of the German
authorities concerning the permission to produce ground water were
incorrect and that the court proceedings concerned were unfair. He
considers in particular that he could not properly comment upon the
expert's opinion which, due to a technical problem, had not been
recorded. The Stuttgart Administrative Court had, therefore, not been
able properly to assess the evidence in the present case. He also
complains that he had no oral hearing before the Baden Wuerttemberg
Administrative Court of Appeal. He invokes Articles 6 para. 1, 8 and
14 of the Convention and Article 1 of Protocol No. 1 to the Convention.
2. The applicant also complains under Article 6 para. 1 of the
Convention that the decision taken in the tax proceedings were not
correct and that the proceedings concerned were unfair.
THE LAW
1. The applicant complains under Articles 6 para. 1, 8 and 14
(Art. 6-1, 8, 14) of the Convention and Article 1 of Protocol No. 1
(P1-1) to the Convention that the Administrative Court decisions
concerning the Water Board's permission to produce ground water were
incorrect and that he had no fair hearing in the proceedings
concerned.
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 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
established 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).
Furthermore, the Commission finds that the applicant failed to
show that he could not present his case properly or that the
proceedings were otherwise unfair and thus violated Article 6 para. 1
(Art. 6-1) of the Convention. The Commission considers in particular
that the applicant had been able to comment upon the expert opinion in
the course of the hearing before the Stuttgart Administrative Court.
He did not challenge the expert in these proceedings. Furthermore,
the assessment of the evidence concerning the technical implications
of the envisaged production of ground water does not appear arbitrary.
As regards the applicant's complaint that he had no oral
hearing before the Baden Wuerttemberg Administrative Court of Appeal
as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, the
Commission recalls that this provision applies to appeal or cassation
proceedings in a way which clearly depends on the special features of
such proceedings (cf. No. 7211/75, Dec. 6.10.1976, D.R. 7 p. 104).
The decisive elements are the nature of the national appeal system,
the scope of the court's functions and the manner in which the
individual's interests are presented and protected before the court
(see Eur. Court H.R., Ekbatani judgment of 26 May 1988, Series A No.
134, paras. 27 and 28). Furthermore, the principle of publicity must
be fully respected at least in one instance dealing with the merits of
a case (Adler v. Switzerland, Comm. Report. 15.3.85, to be published
in D.R.).
In the present case, the Commission notes that the Stuttgart
Administrative Court, which decided at first instance on the merits of
the applicant's challenge concerning the permission to produce ground
water, held a public hearing in the course of which the applicant was
able to present his case and evidence was taken. The Baden
Wuerttemberg Administrative Court of Appeal, upon the applicant's
appeal, had to examine whether the Stuttgart Administrative Court had
committed procedural errors or whether its decision was incorrect
under substantive law. Having regard to the proceedings before the
Administrative Court of Appeal and the parties' written submissions in
the appeal proceedings, the Court of Appeal did not deem it necessary
to take further evidence or to have an oral hearing, but dismissed the
appeal unanimously.
The Commission, having in particular regard to the subject
matter of the administrative court proceedings concerned, finds that
the Court of Appeal was not called upon to decide any questions such
as issues related to the applicant's personal character, or his manner
of life which could not, as a matter of fair trial, have been properly
determined without his full rehearing.
Moreover, the Comission considers that the applicant's
submissions do not raise any issue under Articles 8 or 14 (Art. 8, 14)
of the Convention or Article 1 of Protocol No. 1 (P1-1) to the
Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains under Article 6 para. 1 (Art.
6-1) of the Convention that his proceedings concerning the reduction
of purchase tax were unfair. However, the Commission finds that the
tax proceedings concerned did not relate to the applicant's civil
rights and obligations or to any criminal charge against him. Article
6 para. 1 (Art. 6-1) of the Convention therefore does not apply to the
proceedings concerned. Consequently, this part of the application is
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)