European Court of Human Rights

THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is a German citizen, born in ... and living in A.

From the copy of a decision of the Federal Court (Bundesgerichtshof)
submitted by the Applicant, it appears that, in ..., he became legal
adviser and later president of the board of directors of the firm Y.

He was dismissed from this post in 1933 and, following his arrest by
the Gestapo, detained in prison from ... to ... 1935.
An arbitration court (Schiedsgericht) decided in ... 1938 that Y should
pay to the Applicant, inter alia, a monthly pension of 2.500
Reichsmark.

In May 1941, the Applicant was charged with misappropriation of funds
(handelsrechtliche Untreue) and offenses against exchange regulations
(Devisenvergehen) and he was detained in prison until December 1941.
In November 1942 he was informed that Y intended to sue him for damages
amounting to over five million Reichsmarks.
Under a settlement, signed on ... 1943, the Applicant renounced his
pension claim against Y.  The criminal proceedings against him were
subsequently discontinued on ... 1943.

In 1951, 1952 and 1953, when he was allegedly in a difficult financial
situation, the Applicant received 500 DM per month from Y.  In 1953 he
asked the Federal Chancellor, Dr. Adenauer, to support his pension
claim against Y.  He reminded Dr. Adenauer that, in 1929, he had given
his shares in Y of substantial value and he threatened to sue him.  In
a letter to Y, Dr. Adenauer stated that, in fact, he could claim
substantial damages from the Applicant personally, quite apart from the
question whether Y could also be held liable for the acts of the
Applicant.

On 8th December 1953, a new settlement was reached between Y and the
Applicant whereby, inter alia.  Y agreed to pay him a monthly pension
of 1.250 DM.  At the same time the Applicant wrote a letter to Dr.
Adenauer in which he renounced all claims against him.

The Applicant submits that the settlements of 1943 and 1953 are
invalid.  He has sued Y for a monthly pension of 2.500 DM. This claim
was dismissed by the Regional Court (Landgericht) of B on ... 1960 and,
on appeal (Berufung) and further appeal (Revision), by the Court of
Appeal (Oberlandesgericht) at C on ... 1961 and by the Federal Court
on ... 1963 respectively.  The Courts held that the 1953 settlement was
valid and binding upon the parties and that, consequently, it was not
necessary to examine the validity of the 1943 settlement.  The
Applicant states that he had no possibility to appeal to the Federal
Constitutional Court (Bundesverfassungsgericht).

He now alleges generally a violation of human rights. He states that
he was a victim of Nazi persecution and that also his agreement to the
1953 settlement was obtained by duress. He further submits that the
Federal Court "ignored and did not examine":

1. that he had been recognised by the competent German authorities as
a victim of Nazi persecution:
2. that his agreement to the settlements of 1943 and 1953 had been
"illegally extorted" from him, and
3. that there was a "shocking disproportion of the performances" in the
1953 settlement.

The Applicant also complains that the Court failed to examine:

1. the value of his claim against Dr. Adenauer,
2. the value of his "still existing" pension claim,
3. the "non-existing" claim of Dr. Adenauer against Y, and
4. that Dr. Adenauer was "liberated from his debts" at the Applicant's
expense.  The Applicant considers that the "political influences from
two sides" (former Nazis and Dr. Adenauer) probably have caused the
"apparent partiality" of the Federal Court.  He claims his full
pension.

THE LAW

Whereas certain of the facts alleged relate to a period prior to 3rd
September 1953, the date of the entry into force of the Convention with
respect to the Federal Republic of Germany; and whereas, in accordance
with the generally recognised rules of international law, the
Convention only governs, for each Contracting Party, facts subsequent
to its entry into force with respect to that Party; whereas it follows
that the Application, insofar as it relates to these alleged facts,
must be rejected ratione temporis;

Whereas, in regard to the remainder of the Application, it is to be
observed that, under Article 26 (Art. 26) of the Convention, the
Commission may only deal with a matter after all domestic remedies have
been exhausted according to the generally recognised rules of
international law; and whereas the Commission has frequently stated
that the constitutional appeal (Verfassungsbeschwerde) to the German
Federal Constitutional Court (Bundesverfassungsgericht), for matters
within the competence of that Court, is a domestic remedy which in
principle falls within the scope of the provisions contained in Article
26 (Art. 26) (see Application No. 1086/61, Yearbook of the European
Convention on Human Rights, Volume 5, pages 148 [154];

Whereas the Applicant submits that he had no possibility to appeal to
the Federal Constitutional Court; whereas, however, under Article 90
of the Act on the Federal Constitutional Court (Gesetz
überBundesverfassungsgericht), everyone has the right to make a
constitutional appeal to the Federal Constitutional Court alleging a
violation by a public authority of one of the Basic Rights
(Grundrechte) or of one of the rights contained in Articles 33, 38,
101, 103 and 104 of the Basic Law (Grundgesetz);

Whereas the Applicant, who failed to lodge a constitutional appeal, has
not shown that, under Article 90 of the Act on the Federal
Constitutional Court, such an appeal was not open to him; whereas,
therefore, he has not established that he has exhausted the domestic
remedies available to him under German law;

Whereas, furthermore, in regard to the Applicant's complaint that the
Federal Court "ignored and did not examine" his allegation that he had
been recognised by the competent German authorities as a victim of Nazi
persecution, it is to be observed that, in order to comply with the
provisions of Article 26 (Art. 26) of the Convention, the Applicant
must show not only that he has submitted the case to the competent
domestic courts, but also he has raised before the domestic courts
those same complaints which are the subject of his Application before
the Commission (see Application No. 617/59, Yearbook of the European
Convention on Human Rights, Volume 3, pages 370 [390]); and  whereas
it does not appear from his statements and from the documents submitted
by the Applicant that, in the proceedings before the Regional Court,
the Court of Appeal and the Federal Court, he raised the issue of his
persecution under the Nazi regime, which is one of his complaints in
his present Application before the Commission; whereas it follows that
he has not shown that he has exhausted the domestic remedies available
to him under German law;

Whereas, in regard to his further complaint that the Federal Court
failed to examine his allegation that Dr. Adenauer was "liberated from
his debts" at the Applicant's expense, the Applicant similarly has not
shown that he has exhausted the domestic remedies by submitting his
claim against Dr. Adenauer to the competent German courts;

Whereas, even presuming that the Applicant has exhausted all domestic
remedies, an examination of the case as it has been submitted,
including an examination made ex officio, does not disclose any
appearance of a violation of the rights and freedoms set forth in the
Convention and especially in Article 6 (Art. 6); whereas, in
particular, in respect of the judicial decisions complained of, the
Commission has frequently stated that in accordance with Article 19
(Art. 19) of the Convention its only task is to ensure observance of
the obligations undertaken by the Parties in the Convention; whereas
proceedings before the domestic courts of the Contracting Parties
accordingly concern the Commission, during its examination of the
admissibility of an application, only insofar as they appear to involve
possible violation of any of the rights and freedoms limitatively
listed in the Convention; and whereas there is no appearance of such
a violation in the proceedings complained of;

Whereas, in regard to the alleged partiality of the Federal Court, the
Commission, having examined the very detailed decision given by the
Court in the Applicant's case finds no reason to doubt the impartiality
of the Court; whereas, it appears from this decision that the
allegations made in the Applicant's further appeal (Revision) were each
carefully examined by the Federal Court and rejected on reasonable
grounds;

Whereas, in particular, in regard to the Applicant's complaints that
the Federal Court failed to examine the value of his claim against Dr.
Adenauer, and the "non-existing" claim of Dr. Adenauer against Y, it
appears from the decision of the Court that it did indeed deal with
these claims insofar as they had a bearing on the relations between the
Applicant and Y; whereas, contrary to the allegation of the Applicant,
it further appears from Part B III of the decision of the Federal Court
that it examined the value of the Applicant's claim against Y; whereas,
finally, the Applicant also complained before the Federal Court that
the Court of Appeal had refused to hear him and several other persons
as witnesses; whereas, however, it appears from Part B 1, 2 of the
decision of the Federal Court that the evidence thus offered by the
Applicant was either inappropriate or immaterial to the decision of his
case (see also Application No. 1092/61, concerning the right to be
heard as a witness in one's own case - Collection of Decisions of the
Commission, Volume 9, pages 37 - 39);

Whereas, it follows that the remainder of the Application is manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2) of the Convention.

Now therefore the Commission declares this Application INADMISSIBLE.