THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5398/03 
by Utz RIPPE 
against Germany

The European Court of Human Rights (Third Section), sitting on 2 February 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr L. Caflisch
 Mr C. Bîrsan
 Mr V. Zagrebelsky
 Mrs A. Gyulumyan, 
 Mrs R. Jaeger,

Mrs I. Ziemele, judges, 
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 11 February 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Utz Rippe, is a German national who lives in Petershagen in Germany. He was represented before the Court by  
Mr H. Bahr, a lawyer practising in Celle.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was the managing partner of the Rippe Automatenbetriebe GmbH (henceforward referred to as “R-Company”). In 1998  
the R-Company rented commercial premises from another company  
(“the lessor”), in order to operate its business. In October 2000 the  
R-Company became insolvent. By agreement of January 2001 the applicant acceded to the lease as from March 2001. As from February 2001  
the R-Company got into arrear with three months’ rent. By letter of  
9 May 2001 the lessor sent the R-Company a request for payment. By letter to both the R-Company and the applicant of 18 May 2001 the lessor terminated the lease without notice (fristlose Kündigung). By 23 May 2001 the applicant had paid the arrears of rent.

The lessor lodged an action for eviction with the Bückeburg Regional Court (Landgericht), alleging that he had sent the applicant two requests for payment on 3 April and 5 April 2001. As the applicant contested this, the Regional Court decided to take evidence by hearing the lessor’s secretary as a witness.

By judgment of 4 February 2002 the Regional Court, following a public hearing, ordered the applicant’s eviction from the premises. That court found that the lessor had proved that he had posted the letters to the applicant. It did not attach credence to the applicant’s claim that he had not received these letters.

By letter of 7 May 2002 the applicant, who was represented by counsel, submitted his reasons for appeal, claiming that the Regional Court’s assessment of the evidence was contrary to the case-law of the Federal Court of Justice. According to the applicant, the mere fact that the witness had posted the letters to the applicant did not suffice to prove that he had actually received them. In this respect, he submitted several possibilities as to how the letters could have been lost before reaching their destination.

By letter of 16 May 2002 the Celle Court of Appeal (Oberlandesgericht) informed the applicant of its intention to reject the appeal without a hearing pursuant to section 522 § 2 of the Code of Civil Procedure (Zivilprozessordnung, see relevant domestic law below). It further invited the applicant to submit written comments within two weeks.

The Court of Appeal, following a preliminary assessment, found that the applicant’s appeal lacked prospect of success. It considered that, according to the terms of the tenancy agreement, it would have been sufficient to inform the applicant about the arrear payments. The applicant had been duly informed by letter of 9 May 2001. Even though this letter had not been directed to the applicant, but to the R-Company, the applicant had undisputedly received it.

In any event, the appeal lacked prospect of success as the Regional Court’s assessment of the facts had neither been contrary to the law nor to the case-law of the Federal Court of Justice. The applicant had not submitted that the Regional Court had wrongly established the facts.

By letter of 4 June 2002 the applicant requested the Court of Appeal to abstain from applying section 522 § 2 of the Code of Civil Procedure and to hold an oral hearing on his appeal. He stated that section 522 § 2 should only be applied if an appeal was manifestly ill-founded. Referring to the Court’s case-law, the applicant further pointed out that Article 6 § 1 of the Convention granted a right to an oral hearing in appeal proceedings, which could only be dispensed with if this was justified by the special features of the proceedings involved. The Court of Appeal had based its letter on different facts than the Regional Court. Under these circumstances, it was necessary to hold a fresh oral hearing. The applicant further denied having gained any knowledge of the content of the letter of 9 May 2001, as he had transferred this letter unopened to the R-Company’s administrator in insolvency. He further maintained that the Regional Court’s assessment of the evidence had not been in accordance with the law.

On 6 June 2002 the Court of Appeal, by unanimous decision, rejected the applicant’s appeal pursuant to section 522 § 2 of the Code of Civil Procedure. The Court of Appeal stated that the appeal had no prospect of success, that the matter at issue was not of fundamental importance, and that is was not necessary to allow the appeal in order to safeguard a consistent application of the law. It found, first, that section 522 § 2 did not require that an appeal was manifestly ill-founded. Notwithstanding, the applicant’s appeal was manifestly ill-founded. The Court of Appeal noted that the applicant had conceded having received the letter of 9 May 2001. By sending this letter, the lessor, who did not know about the R-Company’s insolvency, had taken the necessary steps to inform the applicant about the arrears of rent. It did not matter whether the applicant had gained knowledge of the content of that letter, as he had been in a position to do so.

Referring to the reasons set out in its letter of 16 May 2002, the Court of Appeal confirmed that the Regional Court’s assessment of the evidence had not been contrary to the law.

With respect to Article 6 of the Convention, the Court of Appeal found as follows:

“This provision [section 522 § 2 of the Code of Civil Procedure] is closely linked to the examination of the admissibility of the appeal by the court, as can be seen in the context with section 522 § 1. Accordingly, the applicant’s references to Article 6 of the Convention are not suited to compel the Senate to hold an oral hearing irrespectively of the appeal’s prospect of success. Within the ambit of Article 6, the necessity of an oral hearing in appeal proceedings does not arise, if only the admissibility of the appeal is at issue, if the applicant’s grounds of appeal are irrelevant for the decision or if the appeal can adequately be dealt with on the basis of the content of the case-file (see Zöller/Gummer, Commentary to the Code of Civil Procedure, 23rd ed., § 522, marginal note 36). It follows that Article 6 of the Convention – contrary to the defendant’s point of view – does not require a public hearing in every case in which an appeal is not manifestly ill-founded, but leaves sufficient room for the application of section 522 § 2 of the Code of Civil Procedure. It does not require a specific degree of lack of prospect of success.”

On 15 July 2002 the applicant lodged a constitutional complaint alleging a violation of his rights under the German Constitution and under Article 6 of the Convention. He further requested the Federal Constitutional Court to suspend his eviction from the business premises by interim measure.

By decision of 5 August 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s complaint for adjudication for lack of prospect of success. That court found that the Court of Appeal’s interpretation of the law did not violate the applicant’s constitutional rights. In particular, it neither violated the applicant’s right that his case be adjudicated by the competent judge (Recht auf den gesetzlichen Richter), nor was the limitation of access to the appeal proceedings disproportionate.

This decision was served on the applicant’s counsel on 12 August 2002.

B.      Relevant domestic law

According to the former Code of Civil Procedure, appeal proceedings against a decision given by a court of first instance allowed a complete review of both facts and law.

On 1 January 2002, reform legislation entered into force (Zivilprozess-Reformgesetz), which was aimed at facilitating and thus expediting civil proceedings, inter alia by strengthening the position of the first instance courts and by unburdening second instance proceedings. Following this legislation, appeal proceedings are primarily devised as a means of controlling and rectifying errors made by the courts of first instance.

The relevant provisions as in force since January 2002 read as follows:

Section 513

Grounds of appeal

“(1) An appeal can only be lodged on the ground that the decision is based on a violation of the law...or that the facts which are relevant according to section 529 justify a different decision.

...”

Section 522

Examination of admissibility, decision on rejection

“(1) The Court of Appeal has to establish on its own motion whether the appeal is admissible (statthaft) and whether it has been lodged in accordance with the formalities and time-limits as prescribed by law. If any of these prerequisites is lacking, the appeal has to be rejected as being inadmissible. The decision is taken by court-order which is subject to an appeal on points of law.

(2) The Court of Appeal promptly rejects the appeal by unanimous decision if it is convinced that

1. the appeal does not have prospect of success,

2. the legal matter is not of fundamental importance and

3. the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by the court of appeal.

The court of appeal or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and has to give the appellant the opportunity to submit observations within a set time-limit. The decision pursuant to sentence one has to be reasoned, if the reasons for the rejection are not included in the letter of information pursuant to sentence two.

(3) The decision given pursuant to paragraph two, sentence one is not subject to an appeal. “

Section 529

Scope of examination by the Court of Appeal

“(1) The Court of Appeal has to base its hearing and decision on:

1. the facts established by the first instance court, unless there are concrete indications that raise doubts as to the correctness or completeness of the establishment of the relevant facts which warrant a fresh establishment;

2. new facts, as long as it is admissible to consider these.

...”

In case the Court of Appeal rejects an appeal by judgment following an oral hearing, the appellant may, subject to certain provisions, file a request to be granted leave to appeal on points of law to the Federal Court of Justice.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the Celle Court of Appeal’s refusal to hold an oral hearing on his appeal.

THE LAW

The applicant complained that the absence of an oral hearing before the Celle Court of Appeal constituted a violation of his rights under  
Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Referring to the Court’s case-law, he alleged that there had been no exceptional circumstances which had justified dispensing with an oral hearing in the appeal proceedings. The applicant pointed out that the appeal proceedings concerned both points of fact and law. In his appeal,  
the applicant had submitted that the Regional Court had wrongly established the facts. The Court of Appeal had expressly denied this. In an oral hearing, the Court of Appeal would have been compelled to comment on this point.

Furthermore, the Court of Appeal had based its decision, at least alternatively, on a differing interpretation of the tenancy agreement, which raised further factual problems which would have necessitated an oral hearing.

The Court notes that the proceedings at issue concerned “civil rights and obligations”. It follows that Article 6 § 1 is applicable in the present case.

With regard to the merits of the complaint, the Court reiterates that the manner in which Article 6 of the Convention applies to proceedings before courts of appeal depends on the special features of the domestic proceedings viewed as a whole. Even where the court of appeal has jurisdiction both over the facts and in law, Article 6 does not always require a right to a public hearing. The publicity requirement is certainly one of the means whereby confidence in the courts is maintained. However, the Court has also accepted that there are other considerations, including the right to a trial within a reasonable time and the related need for an expeditious handling of the courts’ case-load, which must be taken into account in determining the necessity of public hearings in the proceedings subsequent to the trial at first-instance level (see, for example, Jan Åke Andersson v. Sweden, judgment of 29 October 1991, Series A no. 212-B, § 27; Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, § 36; Fejde v. Sweden, judgment of 29 October 1991, Series A no. 212-C, § 31; Hoppe v. Germany, no. 28422/95, § 63, 5 December 2002). In this respect, the Court takes note of the fact that the German reform legislation was expressly aimed at facilitating and thus expediting civil proceedings. The Court appreciates that the German legislator, in line with these considerations, clearly defined the conditions under which an appeal may be disposed of without an oral hearing (see section 522 § 2 of the Code of Civil Procedure).

The absence of a hearing before a second or third instance may be justified by the special features of the proceedings at issue (see, among many other authorities, Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, § 31; Jan Åke Andersson, cited above, § 29; Helmers, cited above, § 36; Fejde and Hoppe, both cited above; Ivanovski v.  
the former Yugoslav Rebublic of Macedonia
(dec.), no. 21261/02, 29 September 2005; and Kaipila v. Finland (dec.), no. 49453/99, 18 October 2005). Accordingly, the Court has held that leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the appeal court. Furthermore, a hearing may not be necessary when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (see Fejde, cited above,  
§ 33; Pahverk v. Sweden (dec.), no. 41042/98, 11 February 2003).

The Court will assess this question having regard to the domestic appeal system, to the scope of the Court of Appeal’s powers and to the manner in which the applicant’s interest were actually presented and protected before the Court of Appeal particularly in the light of the nature of the issues to be decided by it (see, for example Ekbatani, cited above, § 33;  
Jan Åke Andersson, cited above, § 23).

With regard to the scope of the Court of Appeal’s powers, the Court notes that the appeal proceedings, as modified by the German reform legislation, allow a full review of the law, but only a limited review of the facts. Furthermore, the written proceedings under section 522 § 2 bear certain similarities to leave-to-appeal proceedings. Based on the content of the case-file and the grounds of appeal submitted by the appellant, the courts of appeal have to decide beforehand whether the legal matter is of fundamental importance regarding facts or law and whether the first instance court’s reasoning might lead to inconsistent jurisprudence. In both cases section 522 § 2 is not applicable and the appeal proceedings require an oral hearing. In a second step the Court of Appeal expresses unanimously its view on the lack of prospect of success, the reasons for which have to be laid down in a letter to the applicant.

When reaching its conclusion, the Court of Appeal has to consider the facts established by the first instance court in accordance with the procedural law, the content of the case-file and the grounds of appeal submitted by the appellant. If the appeal gives rise to doubts as to the correctness or completeness of the relevant facts, again, section 522 § 2 is not applicable. Thus the Court of Appeal could – short of holding a  
hearing – only dismiss the applicant’s appeal and finalise the Regional Court’s judgment. Had only one of the three judges of the Court of Appeal considered that the appeal had prospect of success, section 522 § 2 would not have been applicable and an oral hearing would have been compulsory under domestic law.

With respect to the safeguarding of the applicant’s procedural rights, the Court notes, first, that a public hearing was held at first instance. Furthermore, the Celle Court of Appeal, by letter of 16 May 2002, informed the applicant about its intention to reject his appeal and the reasons therefore and granted him the opportunity to submit comments before taking its final decision. It follows that the applicant, who was represented by counsel throughout the proceedings, had sufficient possibility to submit arguments as he saw fit. The prerequisite of a unanimous decision taken by three judges may be considered as a third safeguard.

Turning to the subject matter of the appeal proceedings, the Court notes that the main question raised by the applicant’s appeal concerned the assessment of evidence in civil proceedings relating to the applicant’s eviction from his business premises. In particular, it concerned the question whether the applicant had received two letters in April 2001.

The Court further notes that the Court of Appeal, basing its decision on the content of the case-file and on the applicant’s new written observations, did not find that the assessment of evidence by the first instance court had been contrary to the law. In so far as the Court of Appeal based its decision on fresh considerations which had not been taken into account by the first instance court – though the substantial facts had been included in the  
case-file – the applicant had been informed of these and had been able to submit his comments. The Court further notes that these fresh considerations only served as alternative reasons. In the light of these circumstances, the Court does not find that the applicant’s appeal raised any questions of fact or law which could not be adequately resolved on the basis of the case-file.

Having regard to the entirety of the proceedings before the German Courts and to the nature of the issues submitted to the Court of Appeal, the Court finds that there were special features to justify the decision not to hold a public hearing.

It follows that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

RIPPE v. GERMANY DECISION


RIPPE v. GERMANY DECISION