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Cite as: [1969] ECHR 22
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X. AND Y. v. THE FEDERAL REPUBLIC OF GERMANY - 3873/68 [1969] ECHR 22 (15 December 1969)

THE FACTS

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

The first applicant is a German citizen, born in 1920, and residing at
Hutten. He is married to the second applicant and acts also on her
behalf.

On .. October 1967, the second applicant bought an agricultural area
of 4585 square metres from a farmer. The contract of sale was set up
by a notary at Schlüchtern;  in its point (6) it was mentioned that the
notary had informed the parties that the entry in the land register
depended upon a declaration of the Agriculture and Forestry's Office
(Land- und Forstwirtschaftsbehörde) that it waived its right of
pre-emption which this authority had under the terms of Article (6) of
the Land Settlements' Act (Reichssiedlungsgesetz). On .. December 1967,
the Agriculture and Forestry's Office informed the applicant that it
had decided to pre-empt the piece of land which the second applicant
had bought on .. October. In this decision (Bescheid) it was stated
that the applicant was not a farmer and that the area concerned was
farming land and that consequently it was in the public interest that
a farmer should acquire it in order to enlarge his farm.

It appears that the applicant was warned in this decision of his rights
to appeal to the competent court against this decision but apparently
the applicant failed to do so. The applicants subsequently lodged
numerous complaints with several ministers, the federal president, and
other authorities, stating that they had been deprived of their
validity acquired property. They requested to get the unlimited
possession of the land concerned but apparently they had no success.
In May 1968 the Land Settlement Agency of Nassau (Nassauische
Siedlungsgesellschaft) who acted on behalf of the above mentioned
office, asked the applicants whether they would take on lease the area
concerned. The applicants apparently refused to do this.

The applicants then requested legal aid from the Regional Court
(Landgericht) of Hanau in order to institute proceedings against the
Land Settlement Agency for restitution of the above-mentioned piece of
land. By decision of .. October 1968, the Court rejected the
applicants' request for lack of reasonable prospects of success. The
Court stated that the right of pre-emption of the Agriculture and
Forestry's office was validly based in the Land Settlements' Act and
that the Land Settlement Agency of Nassau therefore had correctly
acquired the area concerned and that it was under no legal obligation
whatsoever to restore it to the applicants. On the applicants' appeal
the Court of Appeal (Oberlandesgericht) of Frankfurt confirmed this
decision. The applicants then lodged a constitutional complaint
(Verfassungsbeschwerde) with the Federal Constitutional Court
(Bundesverfassungsgericht), requesting the recovery of their property.
The Court, however, on .. December 1968, did not accept the appeal for
decision since it was inadmissible.

The applicants now complain that they have been deprived of their land
which they had validly acquired. They allege a violation of Article 1
of the First Additional Protocol.

THE LAW

Whereas, in regard to the applicants' complaints relating to the
alleged deprivation of their property by the Land Settlement Agency of
Nassau, 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 applicant failed
to appeal in time to the courts of against the decision of the
Agriculture and Forestry Office of .. December 1967; whereas therefore,
he has not exhausted the remedies available to him under German law
whereas, moreover, an examination made ex officio, 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; whereas, therefore, the condition as to the exhaustion of
domestic remedies laid down in Articles 26 and 27, paragraph (3) (Art.
26, 27-3), of the Convention has not been complied with by the
applicant;

Whereas the applicants also complain that they were refused free legal
aid for the proceedings before the Regional Court of Hanau concerning
their compensation claim;  whereas, in examining this complaint, the
Commission has had regard both to Article 6, paragraph (1) and to
Article 6, paragraph (3) (c) (art. 6-1, 6-3-c), of the Convention;

Whereas, in respect of Article 6, paragraph (3) (c) (Art. 6-3-c), it
is to be observed that the Convention, under the terms of Article 1
(Art. 1), guarantees only the rights and freedoms set forth in Section
I of the Convention; and whereas under Article 25 paragraph (1)
(Art. 25-1), only the alleged violation of one of those rights and
freedoms by a Contracting Party can be the subject of an application
presented by a person, non-governmental organisation or group of
individuals; whereas otherwise its examination is outside the
competence of the Commission ratione materiae;

Whereas it is true that under Article 6, paragraph (3) (c)
(Art. 6-3-c), of the Convention, everyone charged with a criminal
offence has the right, subject to certain conditions, to be granted
free legal assistance;

Whereas, however, as to Commission has frequently stated that the right
to free legal aid in civil cases is not as such included among the
rights and freedoms guaranteed by the Convention; whereas it follows
that the application, insofar as it relates to Article 6, paragraph
(3)(c) (Art. 6-3-c), is incompatible with the provisions of the
Convention within the meaning of Article 27, paragraph (2) (Art. 27-2);

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE