AS TO THE ADMISSIBILITY OF
Application No. 35208/97
by ZENTRALRAT DEUTSCHER SINTI UND ROMA
and Romani ROSE
against Germany
The European Commission of Human Rights sitting in private on
27 May 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
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 20 February 1997
by ZENTRALRAT DEUTSCHER SINTI UND ROMA and Romani ROSE against Germany
and registered on 7 March 1997 under file No. 35208/97;
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 first applicant is a registered association uniting local and
regional associations of German Sinti and Roma. It has its seat in
Heidelberg. The second applicant is the President of the first
applicant and is also representing the latter in the proceedings before
the Commission.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
On 25 September 1996 the Bochum District Court (Amtsgericht), in
proceedings relating to a lease contract, gave the following reasons
as to why the landlord had rightly refused the tenants' proposal of a
subsequent tenant (Nachmieter).
"Insoweit waren die Kläger nach Ansicht des Gerichtes berechtigt, weitere Bemühungen um einen Nachmieter abzulehnen, da die Beklagten nach den Bekundungen des gleichen Zeugen einen Zigeuner als Nachmieter anboten. Diese Bevölkerungsgruppe ist traditionsgemäß überwiegend nicht seßhaft und gehört aus Vermietersicht daher so offensichtlich nicht zu den durchschnittlich geeigneten Mietern mit zutreffender Zukunftsprognose, daß die Erwartungen weiterer fruchtbarer Vermittlungszusammenarbeit aus der Sicht der Kläger zurecht gestört und nicht mehr fortzusetzen war." "To this extent, the plaintiffs were, in the opinion of the court, justified in refusing to consider any further proposals for a subsequent tenant as, according to the evidence given by the same witness, the defendants had proposed a gipsy as subsequent tenant. Traditionally, this ethnic group is predominantly unsettled and, from a landlord's point of view, is clearly so unrepresentative of the average suitable tenant, with the corresponding outlook for the future, that expectations of further fruitful negotiations were, from the plaintiffs' point of view, fully unfounded and untenable." The applicants were not a party to the above proceedings. They learned about the judgment by a newspaper article of 25 October 1996. On 15 November 1996 the applicant association, represented by its President, i.e. the second applicant, addressed a letter to the Minister of Justice of Northrhine-Westfalia, expressing its concern about the discriminatory view voiced in the above judgment, namely that a gipsy was not a suitable tenant. It noted that, according to its information, no appeal lay against the judgment and drew attention to the possible repercussions of the court's finding, which had meanwhile become known nationally as well as internationally. The applicant association requested the Minister of Justice to hold a press conference and to give a public clarification that such opinions did not have a place in present day Germany. Moreover, it requested him to take appropriate steps against the responsible judge. The Minister of Justice of Northrhine-Westfalia replied on 19 November 1996. He stated that he had immediately ordered an administrative supervision (dienstaufsichtsrechtliche Prüfung). However, according to the Basic Law (Grundgesetz), judges were independent. Administrative supervision could only serve to examine whether they carried out their duties formally correctly and without delay. While he, in his capacity as administrative superior (Dienstvorgesetzter), could not criticise any decisions taken by a judge, he had already commented on the judgment at issue on 16 November 1996 in a newspaper article. Moreover, the applicant association's comments had been transmitted to the judge concerned. COMPLAINTS The applicants complain under Article 14 of the Convention in conjunction with Article 2 para. 1 of Protocol No. 4 and in conjunction with Article 1 of Protocol No. 1. The applicant association, emphasising that under the terms of its statutes one of its aims is to oppose any discrimination against Sinti and Roma, raises these complaints as a representative of its members, who according to its submissions are about 70,000 German Sinti and Roma. The applicants submit that the judgment of the Bochum District Court discriminates against Sinti and Roma on account of their adherence to a national minority and infringes their freedom to choose their residence and their right to the peaceful enjoyment of their possessions. They point out that Germany has signed the Framework Convention on National Minorities of the Council of Europe and has recognised them as a national minority. THE LAW The applicants complain that the judgment of the Bochum District Court of 25 September 1996 discriminates against Sinti and Roma on account of their adherence to a national minority and infringes their freedom to choose their residence and their right to the peaceful enjoyment of their possessions. They invoke Article 14 of the Convention in conjunction with Article 2 para. 1 of Protocol No. 4 and in conjunction with Article 1 of Protocol No. 1 (Art. 14+P4-2-1+P1-1). The Commission notes that neither of the applicants was a party to the proceedings in which the impugned judgment was rendered. It will, therefore, first examine whether the applicants can claim to be victims within the meaning of Article 25 (Art. 25) of the Convention of a violation of their rights guaranteed by the Convention and its Protocols. Article 25 para. 1 (Art. 25-1), so far as relevant, reads as follows: "The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non- governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. ..." The Commission recalls that the concept of "victim" as used in Article 25 (Art. 25) of the Convention must be interpreted autonomously and independently of concepts of domestic law such as those concerning the interest in taking proceedings or the capacity to do so. An applicant can only claim to be a victim of a violation of one of the rights and freedoms recognised by the Convention if there is a sufficiently direct link between the applicant and the damage which he considers that he has sustained as a result of the alleged breach (cf. No. 11724/85, Dec. 5.2.90, D.R. 64 p. 72, 82). As to the first applicant, i.e. the applicant association, the Commission recalls its established case-law, according to which a corporate applicant cannot claim to be itself a victim of measures alleged to have interfered with the Convention rights of its individual members (cf. No. 18598/91, Dec. 18.5.94, D.R. 78 p. 71, 77; No. 24581/94, Dec. 6.4.95, D.R. 81 p. 123, 126). The Commission notes that the applicant association in the present case does not claim to be a victim itself but explicitly raises the complaints as representative of its individual members which are, according to its submissions, about 70,000 German Sinti and Roma. However, the Commission recalls that, in this case, it is essential for the applicant association to identify the individuals represented by it and to show that it has received specific instructions from each of them (cf. No. 10983/84, Dec. 12.5.86, D.R. 47 p. 225). The Commission notes that, in the present case, the applicant association has not complied with this requirement. The second applicant may be understood to complain that, notwithstanding the fact that he was not a party to the proceedings before the Bochum District Court, he is - as a member of the minority concerned - affected by its judgment. The Commission recalls that the Convention organs are not called upon to examine in abstracto whether legal regulations are in conformity with the Convention. However, an individual may, in certain circumstances, be directly affected by legal regulations, and hence claim to be a victim of an alleged breach of the Convention (cf. in particular No. 6959/75, Brüggemann und Scheuten v. Germany, Dec. 19.5.76, D.R. 5 p. 103, 115, concerning a complaint about the legal regulation of abortion, resulting from a judgment of the Federal Constitutional Court, brought by two women, who did not claim to be pregnant or to have been prosecuted for unlawful abortion; see also Eur. Court HR, Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 17 et seq., paras. 33-38, concerning legislation relating to secret surveillance measures potentially applicable without notification to all users of postal and telecommunications services, brought by applicants who were, due to the nature of the measures, unable to allege that they had actually been subject to surveillance; Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, p. 18, paras. 40-41; Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. 15 et seq., paras. 30-34; Modinos v. Cyprus judgment of 22 April 1993, Series A no. 259, p. 10 et seq., paras 17-24, all concerning legislation prohibiting certain homosexual acts between consenting male adults brought by homosexuals, who had not actually been prosecuted). However, the Commission notes that what is at issue in the present case is not legislation or the legal situation created by a judgment of a Constitutional Court like in the Brüggemann and Scheuten case, but a judgment, given by a single judge of a first instance court. There is no indication that this judgment represents the State's general approach to Sinti and Roma or that the second applicant risks to be subjected to a similar finding in actual or potential litigation. In these circumstances, the Commission finds that the second applicant cannot claim to be a victim within the meaning of Article 25 (Art. 25) of an alleged violation of his rights set forth in the Convention. It follows that the application is incompatible ratione personae 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, unanimously, DECLARES THE APPLICATION INADMISSIBLE. H.C. KRÜGER S. TRECHSEL Secretary President to the Commission of the Commission
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