CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mars 1988

.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. 12754/87                       by E.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 3 March 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   E. BUSUTTIL                   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              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 23 February 1987 by E. against the Federal Republic of Germany and registered on 26 February 1987 under file N° 12754/87;           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 applicant is a German citizen, born in 1926 and living in F.-O.   He is represented in the proceedings before the Commission by Curt Freiherr v.   Stackelberg, a lawyer with a right of audience before the Federal Court (Bundesgerichtshof), whose practice is in Karlsruhe.   1.       In two previous applications the applicant complained of the length of three sets of criminal proceedings instituted against him and his wife by the Public Prosecutor in Trier, Saarbrücken and Cologne (application No. 8130/78) and of the refusal to grant him compensation for detention on remand in the Cologne proceedings which had been discontinued in 1977 (application No. 9108/80).   As regards application No. 8130/78, the European Court of Human Rights (Court) decided on 15 July 1982 that the length of the Trier and Cologne proceedings constituted a breach of Article 6 para. 1 of the Convention (Series A, Vol. 51).   On 21 June 1983 the Court refused to grant the applicant just satisfaction on account of alleged material loss and non-pecuniary damage stating that as regards material loss there was no causal connection between the applicant's claims and the breach of Article 6 para. 1 and as regards non-pecuniary damage that the finding of a violation already furnished sufficient just satisfaction taking into account that the Trier Regional Court (Landgericht) mitigated the applicant's sentence in view of the inordinate length of the proceedings and that the Cologne proceedings had been discontinued (Series A, Vol. 65, pp. 8-11, paras. 15-24). The Court did not consider it necessary to defer its judgment as had been requested by the applicant pending the outcome of an action for damages lodged by him with the Trier Regional Court on 16 April 1964. Application No. 9108/80 was rejected as being manifestly ill-founded on 14 May 1981.   2.       In September 1983 the applicant lodged another application, No. 10804/84, which related to the aforementioned action for damages instituted by the applicant before the Trier Regional Court on 16 April 1964.   With that action the applicant had claimed a declaratory judgment to the effect that the defendant State Rheinland-Pfalz was responsible for the damage caused to him by investigation measures through which his business partners were informed of the suspicion that he had defrauded them.           The civil proceedings had been stayed from 1966 to 1976 pending the outcome of the criminal proceedings.   On 23 March 1979 the Trier Regional Court had dismissed the action stating that in view of the fact that meanwhile the applicant had been convicted in the Trier proceedings (namely on 17 March 1972 and the Federal Court rejected the applicant's petition for a review on a point of law on 11 February 1976) there was nothing to show that the investigating authorities had acted unlawfully or arbitrarily in investigating the matter and hearing the applicant's business partners and creditors as witnesses.   Insofar as the applicant had also complained of the length of the criminal proceedings the Court pointed out that the action only related to damage allegedly caused by the investigating authorities by conveying to his creditors the suspicion that he defrauded them.   Furthermore the Court stated that in any event the applicant had to show that the authorities acted arbitrarily.   The mere allegation that criminal proceedings were unreasonably long did not denote any misconduct in office (Amtspflichtverletzung).           The applicant had then lodged an appeal (Berufung) raising in his submissions of 25 September 1979 to the appellate court additional claims for a declaratory judgment to the effect that the defendant had to pay damages caused:           - by his detention on remand in the Trier and Saarbrücken           proceedings for four and a half years;           - by the length of the Trier criminal proceedings which           lasted more than 16 years and were thus unreasonable.           On 8 October 1980 the Koblenz Court of Appeal (Oberlandesgericht) gave a default judgment against the applicant dismissing his appeal. This judgment was reconsidered and maintained by decision of 4 March 1981.   The Court of Appeal stated in this decision that the original claims were unfounded.   The additional claims were considered as a new action which the appellate court refused to admit for reasons of procedural economy (nicht sachdienlich).           The applicant had then lodged an appeal to the Federal Court (Bundesgerichtshof).   With this appeal he submitted the judgment given on 15 July 1982 by the European Court of Human Rights and alleged that the question of whether or not he was entitled to claim damages because of the breach of Article 6 para. 1 of the Convention had first to be decided under national law.   On 29 November 1982 the Federal Court refused to admit the appeal insofar as it concerned the applicant's original claims.   The remainder of the appeal (concerning the additional claims) was admitted.           The applicant had lodged a constitutional complaint against the Federal Court's decision of 29 November 1982 requesting the Federal Constitutional Court (Bundesverfassungsgericht) to quash the decision complained of insofar as it rejected his appeal and to order the Federal Court to deal with this appeal.   On 2 March 1983 a group of three judges of the Federal Constitutional Court had rejected the constitutional complaint as offering no prospects of success.   The decision was served on the applicant's counsel on 8 March 1983.           The applicant then complained to the Commission of the Federal Court's decision of 29 November 1982 and of the dismissal of his original claims with regard to which the decision complained of was the final one.   He considered it to be unfair that despite the unreasonable length of the criminal proceedings the civil courts expected him to state in detail and to prove which particular investigating measures had been unlawful.   He also complained of the length of that part of the civil proceedings which was terminated by the Federal Court's decision of 29 November 1982.   He alleged that he already raised this latter complaint implicitly in his submission to the Federal Constitutional Court.           This previous application No. 10804/84 was rejected by the Commission on 13 December 1984 as being manifestly ill-founded insofar as the applicant had complained of the decisions given in the proceedings concerning his action for damages and for non-exhaustion of domestic remedies insofar as he complained of the length of these proceedings.   It was found that the applicant had failed to raise this particular complaint before the Federal Constitutional Court.   3.       The present application also relates to the applicant's civil action for damages.   The proceedings relating thereto were not terminated by the Federal Court's decision which was the object of the previous application No. 10804/84 as this Court admitted that part of the applicant's appeal which concerned his additional claims raised in second instance before the Koblenz Court of Appeal.           On 7 April 1983 the Federal Court gave a decision with regard to the admitted part of the applicant's appeal against the appellate court's judgment of 4 March 1981.   It quashed this judgment to the extent that it had confirmed the dismissal of the applicant's additional claims and sent the case back for a new hearing and decision on these new claims.   The Federal Court pointed out that the applicant had already in first instance referred to Article 6 para. 1 of the Convention and to the length of the investigation proceedings. The additional claims raised in second instance were therefore not based on completely new allegations and it was therefore appropriate (sachdienlich) to deal with these claims in the pending proceedings. The Federal Court further stated that a claim for compensation for the applicant's detention on remand was probably lodged out of time but the claim for compensation on account of the length of the proceedings had to be determined.           Following the Federal Court's decision of 7 April 1983 the Koblenz Court of Appeal again considered the applicant's alleged additional claims for damages caused:           -   by his detention on remand in the Trier and Saarbrücken            proceedings for four and a half years;           -   by the length of the Trier criminal proceedings which            the European Court of Human Rights had judged to be            unreasonable in the decision of 15 July 1982.           It appears that at his request the applicant was granted extensive time-limits to revise his arguments and substantiate his allegations following the judgment of 21 June 1983 by the European Court of Human Rights under Article 50 of the Convention.           On 23 January 1985 the Court of Appeal decided to maintain the judgment by default given previously against the applicant on 8 October 1980.           The Court of Appeal found that the alleged compensation claim for the applicant's detention on remand in the Trier and Saarbrücken proceedings was time-barred as it had not been raised within three years after the applicant's release in January 1974.   In any event the claim was unfounded as the applicant had neither shown that a public official had committed misconduct in office nor that any concrete damage was caused to him by any such alleged misconduct.           As to the alleged damage caused by the length of the Trier proceedings, the Court of Appeal stated that lawyers' fees and expenses incurred by the applicant did not depend on the length of the proceedings but on the complexity of the case and the amount of work involved and the days spent in court defending the applicant at oral hearings.   Therefore it did not matter that there had been periods of inactivity or other pauses that unduly prolonged the proceedings.   The Court of Appeal furthermore considered that a loss of earnings had not been substantiated.   It also referred in this respect to the Article 50 judgment of 21 June 1983 where it is stated in para. 20: "the alleged financial losses of Mr. and Mrs.   Eckle result from the very existence and outcome of the prosecutions brought against them.   There is nothing in the evidence submitted to support the view that the asserted damage was attributable to the failure to comply with the requirements of Article 6".           The applicant's appeal to the Federal Court was declared inadmissible on 19 December 1985 as raising no issue of general interest and being without prospects of success.           The Court confirmed the appellate court's finding that the alleged first claim was time-barred and in any event unsubstantiated. Furthermore it stated that the damage allegedly caused by the length of the Trier proceedings was likewise not substantiated.           The applicant then lodged a constitutional complaint alleging that the civil courts wrongly and arbitrarily dismissed his action. He also complained in a general manner and without further details that it violated fundamental rights to deprive him of his claim for such a long time.           On 25 August 1987 a group of three judges of the Federal Constitutional Court rejected the applicant's complaint as offering no prospects of success.   The applicant was imposed a fee of 300.- DM. It is stated in the decision that the Federal Court's decision was based on ordinary and not constitutional law and did not disclose any arbitrariness.     COMPLAINTS           The applicant complains that the German courts wrongly dismissed his action.   He argues that the time-limit of three years for raising the claim for compensation for his detention on remand did not start with his release from detention but only in the moment when the warrant of arrest was set aside in September 1977.   To decide otherwise violated the principle of a fair trial.           This principle was likewise violated in that the requirements of the civil courts with regard to his obligation to substantiate his claim were too strict.   The applicant invokes Articles 5 para. 5 and 6 para. 1 of the Convention.     THE LAW   1.       The applicant complains of the dismissal of his civil court action claiming damages from the Land Rheinland-Pfalz and also of the court 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 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).           It is true that in this case the applicant also complains that the denial of his alleged claims for compensation on account of detention on remand and the length of criminal proceedings violated Articles 5 para. 5 and 6 para. 1 (Art. 5-5, 6-1) of the Convention.           However, neither the domestic court nor the Commission in the previous application matter relating to the criminal proceedings against the applicant found that the applicant's detention on remand violated any of the provisions set out in Article 5 paras. 1-4 (Art. 5-1, 5-4) of the Convention.   Consequently the applicant has no claim under Article 5 para. 5 (Art. 5-5) of the Convention.   As to the alleged violation of Article 6 para. 1 (Art. 6-1) the applicant has failed to substantiate it.   He has not shown that the German courts disregarded evidence offered by him or disregarded his submissions. His arguments do in reality mean that the courts committed errors of law and fact.   Such allegations are, however, as stated above, irrelevant.           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 further seems to complain of the length of the proceedings before the civil courts.           It is true that Article 6 para. 1 (Art. 6-1) of the Convention secures to everyone the right to have his civil rights decided within a reasonable time.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision 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.           In the present case the applicant failed to substantiate the present complaint in his submissions to the Federal Constitutional Court which consequently considered the constitutional complaint as being directed only against the Federal Court's decision of 19 December 1985. In these circumstances the applicant cannot be considered to have exhausted the remedies available to him under German law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) 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)