CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 juillet 1986

.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 } The European Commission of Human Rights sitting in private on 18 July 1986, the following members being present:                       MM. C.A. NØRGAARD, President                         J.A. FROWEIN                         F. ERMACORA                         S. TRECHSEL                         B. KIERNAN                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                     Sir Basil HALL                       Mr. H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 31 January 1984 by R.W. against the Federal Republic of Germany and registered on 7 August 1985 under file No. 11687/85;   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 facts of the case as they have been submitted by the applicant may be summarised as follows:   The applicant is a German citizen resident in Mörfelden-Waldorf near Frankfurt.   In the proceedings before the Commission, she is represented by Mr. Wenger, a lawyer practising in Frankfurt.   In 1982, following a car accident with one Mr. St., the applicant instituted civil proceedings before the Gerau District Court (Amtsgericht) against both the respective insurance company and Mr. St. as the insured person claiming compensation for damages and interest thereon.   On 13 April 1983, the Gerau District Court ordered a certain amount to be paid to the applicant, though it omitted to rule on the interest.   On 27 May 1983, the same court rejected in an independent decision the applicant's request to have the above-mentioned decision corrected with regard to the interest.   The court held that the applicant's aim to modify the judgment could not be achieved by means of the requested correction according to S. 319 of the German Code of Civil Procedure (Zivilprozessordnung) in view of the fact that that provision only covered errors in writing or calculation and not errors in fact or in law.   The court furthermore observed that in any event the applicant would have had first to request a correction of the statement of facts in the judgment of 13 April 1983 in order to include the claim of interest.   Such a request would meanwhile be out of time.   On 28 November 1983, the Federal Constitutional Court (Bundesverfassungsgericht) dismissed the applicant's constitutional complaint as not offering prospects of success.   COMPLAINTS   1.       The applicant complains under Article 6 para. 1 (art. 6-1) of the Convention that the proceedings before the Gerau District Court were not fair.   She alleges that the court did not read the complete case file and overlooked the claim of interest in the first decision of 13 April 1983.   2.       The applicant furthermore complains that the court did not correct the mistake in the subsequent proceedings.   She alleges an unfair hearing in breach of Article 6 para. 1 (art. 6-1) of the Convention.   THE LAW   1.       The applicant complains under Article 6 para. 1 (art. 6-1) of the Convention that the civil proceedings before the Gerau District Court in April 1983 have not been fair in as much as that court did not take cognizance of the complete case file.   However, the Commission is not required to decide whether or not these facts alleged by the applicant disclose any appearance of a violation of Article 6 para. 1 (art. 6-1) of the Convention 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.   The Commission observes that the correction of a judgment according to S. 319 of the German Code of Civil Procedure only applies in cases of evident errors in writing or calculation.   In the present case, the Gerau District Court dismissed the applicant's request to correct the judgment on the ground that the applicant alleged the omission of her claim of interest which could not be considered as simply a writing error nor could it be added without a prior change of the statement of facts in separate proceedings.   The Commission moreover notes that the applicant, who was represented by a lawyer, did not lodge an appeal (Berufung) against the first decision.   The Commission recalls its constant jurisprudence according to which there is no exhaustion of domestic remedies where a domestic appeal is not admitted because of a procedural mistake (see e.g. No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79).   In the instant case, the applicant failed to choose the correct legal procedure either to have the statement of facts changed prior to the request of correction under S. 319 of the German Code of Civil Procedure or to institute appeal proceedings in time.   The applicant has therefore not exhausted the remedies available to her 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 remedies at her disposal.   It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and her application must in this respect be rejected under Article 27 para. 3 (art. 27-3) of the Convention.   2.       The applicant furthermore complains under Article 6 para. 1 (art. 6-1) of the Convention that the Gerau District Court's decision not to correct its previous judgment was unfair.   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 (see No. 6172/73, Dec. 7.7.75, D.R. 3 p. 77).   It is true that in the present case the applicant also alleges that the proceedings concerning the previous judgment were not fair within the meaning of Article 6 para. 1 (art. 6-1).   However, the Commission finds that there is nothing in the case file to indicate that the applicant, who was represented by a lawyer, could not present her case properly, or that the proceedings were otherwise unfairly conducted.   Moreover, the Commission observes that the court was bound to dismiss the applicant's request according to S. 319 of the Code of Civil Procedure.   This complaint does not therefore disclose any appearance of a violation of the rights and freedoms set forth in the Convention and specially in Article 6 para. 1 (art. 6-1).   It follows that this part of the application is manifestly ill-founded within the meaning of 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)