AS TO THE ADMISSIBILITY OF
by Meike JUNG
The European Court of Human Rights (Fifth Section), sitting on 29 September 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 26 January 2007,
Having deliberated, decides as follows:
The applicant, Ms Meike Jung, is a German national who was born in 1970 and lives in Berlin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Together with Mr W., the applicant held shares in a limited liability company which in 2001 took out several loans from the Berliner Volksbank eG for which both the applicant and Mr Weiβ provided directly enforceable guarantees (selbstschuldnerische Bürgschaft). In July 2002 the bank terminated the loans on account of arrears and claimed the outstanding debts from the applicant.
After the applicant had refused to pay, the bank invoked the guarantees and in 2004 brought an action claiming partial payment of 50,000 euros (EUR). Together with its statement of claim the bank submitted, inter alia, a deed signed by the applicant on 16 March 2001 guaranteeing an overdraft of the company’s account in anticipation of a current account advance (Kontokorrentkredit) of EUR 200,000. On 13 September 2004, following an oral hearing, the Regional Court found the bank’s claim to be justified in view of the guarantee. The applicant brought an appeal against the judgment.
On 15 February 2005 the Court of Appeal advised the parties that it had doubts as to the action’s conclusiveness (Schlüssigkeit). In the opinion of the Court of Appeal, the guarantee of 16 March 2001 did not cover the bank’s claim since it was in anticipation of a current account advance and had therefore expired once the advance had been authorised.
On 23 August 2005 the bank’s lawyer submitted a deed guaranteeing the actual current account advance signed by the applicant on 26 April 2001. The applicant did not dispute the newly submitted guarantee; however, she alleged that its submission constituted an inadmissible amendment of claim (Klagänderung) and that a claim based on the new guarantee was moreover time-barred.
In September 2005 the presiding judge of the competent chamber, Mr W., fell ill. He has been unfit for service because of illness (dienstunfähig krank) since then. By decision of the Court of Appeal’s presidium of 30 August 2005 Mr G. was appointed regular deputy presiding judge (regelmäβiger Vertreter des Vorsitzenden).
By letter of 17 October 2005 Mr G. informed the parties that in view of the new submission of the bank the chamber intended to dismiss the applicant’s appeal in accordance with section 522 § 2 of the Code of Civil Procedure (see Relevant domestic law and practice, below) without an oral hearing for lack of prospects of success. The court considered that from the beginning the bank had based its claim on an undisputed guarantee for the current account advance and had simply submitted the wrong deed. For this reason the claim could not be time-barred either. In reply, the applicant submitted that, because of the amendment of claim, a decision under section 522 § 2 of the Code of Civil Procedure was no longer admissible and an oral hearing was necessary. On 25 January 2006 the Court of Appeal, by unanimous decision, dismissed the appeal under section 522 § 2 of the Code of Civil Procedure, referring to the reasons set out in the letter of 17 October 2005.
On 7 February 2006 the applicant submitted a complaint that she had not been heard (Gehörsrüge), arguing, inter alia, that the Court of Appeal had neither dealt with her arguments regarding a modification of the matter in dispute (Wechsel des Streitgegenstandes) nor the question whether a decision under section 522 § 2 of the Code of Civil Procedure was still admissible.
On 27 February 2006 the Court of Appeal dismissed the applicant’s complaint. The court held that it did not view the bank’s submission on appeal as new or as an amendment of claim. However, even if it had considered it as such an oral hearing would not have been necessary. The new submission had been undisputed and was therefore admissible in any event on appeal. An amendment of claim would have been relevant (sachdienlich) and therefore also admissible, irrespective of the applicant’s objection. Finally, the bank’s claim was not time-barred as argued by the applicant: the current account advance had not been terminated until 2002 so the statute of limitations ran until the end of 2005 and the correct guarantee had been submitted in time.
In a constitutional complaint of 3 April 2006 the applicant alleged a violation of her right to be heard and a violation of her right to the legally competent judge. In connection with the latter argument, she submitted that because of the long-term illness of Mr W. a new presiding judge should have been appointed. Furthermore, the decision of the presidium of 30 August 2005 was unlawful because there had been no material cause (sachlicher Grund) for the appointment of Mr G. as deputy presiding judge and thus a change in the distribution of business (Geschäftsverteilungsplan) in the course of the business year.
On 26 July 2006 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for examination (file no. 1 BvR 1194/06).
B. Relevant domestic law
The relevant domestic law is described in the Court’s decision in the case of Rippe v. Germany (dec.), no. 5398/03, 2 February 2006.
The applicant complained under Article 6 § 1 of the Convention that by applying section 522 § 2 of the Code of Civil Procedure the Court of Appeal had deprived her of a remedy.
She further complained under Article 6 § 1 of the Convention that the Court of Appeal had dismissed her appeal without an oral hearing.
Finally, the applicant complained under Article 6 § 1 of a violation of her right to the legally competent judge and of the lack of reasoning of the Federal Constitutional Court’s decision.
Relying on Article 6 § 1 of the Convention, the applicant complained about several aspects of the appeal proceedings. In so far as relevant Article 6 § 1 provides:
In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by a[n] tribunal established by law ...
1. Alleged deprivation of a remedy
The applicant complained that because no appeal lay against the decision of the Court of Appeal dismissing her appeal she had been deprived of a remedy.
The Court notes that, pursuant to section 522 § 3 of the Code of Civil Procedure, the dismissal of an appeal by unanimous decision under section 522 § 2 of the Code of Civil Procedure – as in the instant case – is not subject to appeal.
The Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation (see Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11, and Antonenko v. Russia (dec.), no. 42482/02, 23 May 2006).
The Court notes that in the instant case, with the introduction of section 522 §§ 2 and 3, aimed primarily at facilitating and thus expediting civil proceedings, the domestic legislator decided against a (further) appeal in cases that fulfil the requirements set out in section 522 § 2. In view of the established case-law, this decision does not violate Article 6 § 1 of the Convention.
Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.
2. Lack of an oral hearing on appeal
The applicant further complained that the Court of Appeal had rejected her appeal without a public hearing. She alleged in particular that because of the new submission by the respondent, which – in her opinion – constituted an amendment of claim, the court should not have dispensed with an oral hearing in the appeal proceedings.
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 over both the facts and the law, Article 6 does not always require a public hearing. A hearing may in particular not be necessary when the appeal 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 Rippe v. Germany (dec.), no. 5398/03, 2 February 2006).
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 interests 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 Ekbatani v. Sweden, 26 May 1988, § 33, Series A no. 134, and Jan-Åke Andersson v. Sweden, 29 October 1991, § 23, Series A no. 212 B).
Section 522 of the Code of Civil Procedure has already been considered by the Court in its decision in Rippe (cited above):
“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 prospects 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. ...”
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 Court of Appeal, by letter dated 17 October 2005, informed the applicant of its intention to dismiss her appeal and the reasons therefor and granted her an opportunity to submit comments before taking its final decision. It follows that the applicant, who was represented by counsel throughout the proceedings, had sufficient opportunity to submit arguments as she 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 on appeal concerned the admissibility of the respondent’s fresh submission and its potential consequences for the applicability of section 522 § 2. The Court further notes that the Court of Appeal, while in fact basing its decision on the fresh submission, set out – at least in its decision of 27 February 2006 dismissing the complaint of not having been heard – its findings with regard to this submission in a reasonable and detailed way; in particular, it explained that the fresh submission had been undisputed and had therefore at any rate been procedurally admissible and not required an oral hearing. In the light of these circumstances, and in particular that the relevant questions had been questions of law rather than fact, the Court finds that the applicant’s appeal could be adequately resolved on the basis of the case file.
Having regard to the entirety of the proceedings before the domestic courts and to the nature of the issues submitted to the Court of Appeal, the Court finds that there were special features justifying 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.
3. Remaining complaints
The applicant further complained of a violation of her right to the legally competent judge and, lastly, of the lack of reasoning of the Federal Constitutional Court’s decision.
The Court has examined these complaints and finds that, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Westerdiek Peer Lorenzen