CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 mars 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF     Application No. 11614/85 by Maria-Theresia EMRICH against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 12 March 1987, the following members being present:                         MM. C.A. NØRGAARD, President                         G. SPERDUTI                         J.A. FROWEIN                         M.A. TRIANTAFYLLIDES                         E. BUSUTTIL                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         J. CAMPINOS                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      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 21 February 1985 by Maria-Theresia EMRICH against the Federal Republic of Germany and registered on 24 June 1985 under file No. 11614/85;           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 submitted by the applicant, may be summarised as follows:           The applicant, born in 1936, is a German national and resident in Wiesbaden.   She has studied law and is now a housewife.   The applicant and her husband jointly own an estate in Wiesbaden.           In 1976 the Wiesbaden Municipal Office (Magistrat) permitted the applicant's neighbours, Mr. and Mrs.   K, to construct a duplex house as well as to raise the level of their building site. Thereupon, the applicant and her husband complained to the Municipal Office of a violation of building regulations, inasmuch as the neighbours had raised the level of their building site and exceeded the permissible overall height.   On 4 April 1978 the Municipal Office replied that Mr. and Mrs.   K had not violated any building regulations which served the protection of neighbours' interests (nachbarschützende Vorschriften).   The applicant's and her husband's administrative appeal (Widerspruch) was rejected by the Municipal Office on 12 March 1979.           On 3 July 1980 the Wiesbaden Administrative Court (Verwaltungs- gericht) dismissed their claim that the Municipal Office should revoke the neighbours' building permit and order the restoration of the former situation.           On 3 May 1984 the Hesse Administrative Court of Appeal (Verwaltungsgerichtshof), upon the appeal (Berufung) of the applicant and her husband, quashed the Municipal Office's decisions of 4 April 1978 and 12 March 1979.   It ordered the Office to take a new decision as to the raising of the neighbours' estate within the minimum space between the two buildings (Bauwich).   The Court dismissed the remainder of the appeal and did not grant leave to appeal.   On 23 August 1984 the Federal Administrative Court (Bundesverwaltungsgericht) rejected the applicant's appeal on points of law (Revision) as being inadmissible.           On 13 December 1984 the Federal Constitutional Court (Bundes- verfassungsgericht) dismissed the applicant's constitutional complaint (Verfassungsbeschwerde), in which she had alleged that the decision of the Federal Administrative Court to declare her appeal on points of law inadmissible was incorrect and unfair, as it offered no prospect of success.           Meanwhile, on 22 November 1984 the Wiesbaden Municipal Office ordered the neighbours K partly to lower the level of their site within the minimum space, and informed the applicant thereof.           On 18 January 1985 the Wiesbaden Administrative Court dismissed the request of the applicant and her husband to execute the Hesse Administrative Court of Appeal's decision of 3 May 1984 insofar as it ordered the Municipal Office to take a new decision as to the raising of the neighbours' estate within the minimum space between two buildings.   The Court referred to the possibility to challenge the lawfulness of the Municipal Office's new decision of 22 November 1984 in separate proceedings.           The applicant and her husband thereupon filed an administrative appeal against this decision which the Wiesbaden Municipal Office dismissed on 30 May 1985.   On 5 December 1985 the Federal Constitutional Court declared the applicant's constitutional complaint inadmissible on the ground that she had not appealed to the administrative courts.   Her further complaint to the Hesse Court of Justice (Staatsgerichtshof) was declared inadmissible on 11 June 1986.     COMPLAINTS   1.       The applicant complains under Article 6 para. 1 of the Convention that the proceedings before the German administrative courts were unfair and arbitrary.   She submits in particular that her case was dealt with by different rapporteurs at the Administrative Court and the Administrative Court of Appeal contrary to the general rules on the assignment of cases to rapporteurs.   Moreover, she alleges that the Federal Administrative Court incorrectly, by decision of a group of three judges, rejected her appeal on points of law as inadmissible.   She also considers that the allegedly incorrect decisions of the Courts clearly indicate that they were biased against her.   2.       The applicant complains under Article 1 of Protocol No. 1 that her property right has been violated by the respective decisions of the Municipal Office and the administrative courts.   3.       She also invokes Articles 3, 8, 13, 14 and 17 of the Convention in respect of her above complaints.     THE LAW   1.       The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the proceedings before the administrative courts were unfair.           Article 6 para. 1 (Art. 6-1) provides that "in the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law".           The Commission notes that, in the present case, the applicant brought administrative proceedings challenging the lawfulness of her neighbours' building permit and requesting that the administrative authority concerned should order the partial demolition of their building and the restoration of the former level of the building site. These administrative proceedings concerned the neighbours' right under public law to construct a certain building on their real estate and the supervisory functions exercised by the administrative authority in respect of the neighbours.    The question, therefore, arises whether or not these proceedings involved a determination of the applicant's civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. mutatis mutandis, Eur.   Comm. H.R., No. 7941/77, Dec. 1.5.79, D.R. 16 p. 88, Eur.   Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, paras. 32 et seq.).   However, the Commission does not find it necessary to settle this issue as the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the Convention, in any event, have to be rejected for the following reasons.   a)       As regards the applicant's complaints concerning the proceedings before the Administrative Court and the Administrative Court of Appeal in 1980 to 1984 the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 6 (Art. 6) of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   The Commission recalls that the mere fact that an applicant has submitted his case to the various competent courts does not of itself constitute compliance with this rule.   It is also required that the substance of any complaint made before the Commission should have been raised during the proceedings concerned (cf.   No. 8257/78, Dec. 10.7.78, D.R. 13 p. 248).           In the present case the applicant has lodged a constitutional complaint with the Federal Constitutional Court.   However, she complained only of the allegedly incorrect decision of the Federal Administrative Court and of the unfairness of the proceedings before that Court.   She did not raise, either in form or in substance, any complaints as regards the proceedings before the Administrative Court and the Administrative Court of Appeal.   Moreover, an examination of the case does not disclose the existence of any special circumstances, which might have absolved the applicant from raising these complaints in the proceedings referred to.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and her complaints under Article 6 para. 1 (Art. 6-1) of the Convention as regards the proceedings before the Administrative Court and the Administrative Court of Appeal must be rejected under Article 27 para. 3 (Art. 27-3+26) in conjunction with Article 26 of the Convention.   b)       With regard to the applicant's complaints of the allegedly incorrect decision of the Federal Administrative Court the Commission recalls first 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; No. 10000/82, Dec. 4.7.83, D.R. 33 pp. 247, 255/256).           It is true that in this respect the applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that her appeal on points of law was not considered in fair proceedings by an impartial tribunal established by law.   However, the applicant has, apart from the general allegation of an incorrect decision, not substantiated that the Court was biased against her or that the proceedings were otherwise improperly conducted.   The Commission, therefore, finds no appearance of a violation of her rights set forth in Article 6 para. 1 (Art. 6-1) . It follows that her complaint in respect of the proceedings before the Federal Administrative Court is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   c)       As regards the applicant's complaint that the further proceedings in 1985 were incorrect and unfair the Commission is also not required to decide whether or not the facts alleged by her disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           The Commission observes that according to S. 90 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) a constitutional complaint can generally only be lodged after all remedies available under German law have been exhausted.   In the present case, on 5 December 1985 the Federal Constitutional Court declared the applicant's constitutional complaint inadmissible on the ground of non-exhaustion of ordinary remedies.   The Commission recalls its constant jurisprudence according to which there is no exhaustion of domestic remedies in the sense of Article 26 (Art. 26) of the Convention where a domestic appeal is not admitted because of a procedural mistake (see No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79).   In the present case the applicant failed to comply with the requirement, under the Federal Constitutional Court Act, to exhaust ordinary remedies.   She has therefore not exhausted the remedies available to her under German law.   Moreover, an examination of the case does not disclose the existence of any special circumstances that might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at her disposal.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and her application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.       The applicant furthermore complains under Article 1 of Protocol No. 1 (P1-1) that the respective proceedings violated her right to property.           It is true that Article 1 of Protocol No. 1 (P1-1) guarantees to everyone "the peaceful enjoyment of his possessions".           However, the Commission is not required to decide whether or not the facts alleged by the applicant in this respect disclose any appearance of a violation of this provision as it has already found that, in the present case, the applicant, in her constitutional complaint in 1984, only complained that the proceedings before the Federal Administrative Court were incorrect and unfair.   She did not raise, either in form or in substance, the complaint of a violation of her right to property under S. 14 of the Basic Law (Grundgesetz) which corresponds to Article 1 of Protocol No. 1 (P1-1).           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and her complaint under Article 1 of Protocol No. 1 (P1-1) must be rejected under Article 27 para. 3 in conjunction with Article 26 (Art. 27-3+26) of the Convention.   3.       The applicant also invokes Articles 3, 8, 13, 14 and 17 (Art. 3, 8, 13, 14, 17) of the Convention in respect of her complaints. However, the Commission finds no indication of a violation of her rights under these Articles of the Convention.   It follows that this part of the application is also manifestly ill-founded 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)