CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 octobre 1987

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 12699/87                       by H.N.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 15 October 1987 the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 13 September 1986 by H.N. against the Federal Republic of Germany and registered on 20 January 1987 under file N° 12699/87;           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&S           The applicant is a German citizen, born in 1948 and living in Frankfurt/M.           She has lodged three previous applications which were all declared inadmissible, namely:   No. 9190/80 on 11 March 1982, No. 10949/84 on 10 December 1986 and No. 12277/86 on 2 March 1987. The last-mentioned application concerned a complaint of a search effected in the applicant's house.           The present application concerns labour court proceedings and the decisions given in these proceedings.           In December 1978 the applicant, who was then working in the marketing section of a private company D, was given notice on account of the company's intended close-down.   The company shares were taken over by another company E, which intended to continue the business activities after a reorganisation.   Part of D's staff were taken over by E, but not the applicant.   She therefore brought an action alleging that her dismissal was not justified for social reasons.           The Frankfurt Labour Court (Arbeitsgericht) dismissed the action on 20 August 1979.   The Regional Labour Court (Landesarbeits- gericht) confirmed this judgment on 7 August 1980 but on 14 October 1982 the Federal Labour Court (Bundesarbeitsgericht) quashed the previous decision and sent the case back for a new trial before the Regional Labour Court.   The Labour Court directed that the lower court examine whether the decision as to which D company staff should be taken over was left exclusively to the E company, or whether the D company had been authorised by the E company to decide this matter and had implicitly undertaken the obligation vis-à-vis its staff to have them all transferred to the E company.   In the latter case it would also have to be examined whether the applicant had been offered an acceptable post or whether she had declined any position on the ground that she did not wish to move to Hannover, the seat of the E company.           On 22 May 1985 the Regional Labour Court confirmed the Labour Court's judgment of 20 August 1979 insofar as it rejected the applicant's claim that the dismissal had been unjustified.   However, it ordered the defendant company to pay the applicant DM 11,027.-.   The Court found that there was no evidence to show that the defendant company had undertaken to transfer all staff including the applicant. The Court pointed out that, according to the company's manager, Mr.   H., who was heard as a witness, efforts were made by the company to help its staff to find a new position with the E company but no binding promises had been given in this respect.   Furthermore, the director of the E company had stated as a witness that his company had not authorised the defendant company to make any binding offers concerning job transfers.   These testimonies were corraborated, in the Court's opinion, by the statements of a further witness, the former chairman of the works council.          The applicant's complaint to the Federal Labour Court on the Regional Labour Court's refusal to grant her leave to appeal was rejected on 15 July 1986 as being inadmissible (unzulässig), the applicant having failed to show that the decision complained of diverged from the Federal Labour Court's case-law.   Insofar as the applicant also complained of the Regional Labour Court fixing the value of the claim, the Federal Labour Court stated that this part of her appeal had not been submitted under her lawyer's responsibility, and was therefore - already for that reason - of no relevance.           The applicant also lodged constitutional complaints against the Regional Labour Court's decision of 22 May 1985 and the Federal Labour Court's decision of 15 July 1986.           The first of these complaints was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 5 March 1986 as offering no prospects of success.   It is stated in the decision that there was nothing to show that the Regional Labour Court had arbitrarily disregarded any relevant allegations or arguments submitted by the applicant.           The second complaint was rejected on 3 November 1986 as also offering no prospects of success.     &_COMPLAINTS&S           The applicant complains that her right to be heard was violated in the labour court proceedings because the courts disregarded relevant evidence, i.e. letters of 3 October 1978 addressed by the D company to some employees who were offered a transfer to the E company.   The contents of these letters prove, in the applicant's opinion, that the D company was in a position to influence or determine the question of which members of its staff were to be offered a job in the E company.           The applicant furthermore complains of the length of the proceedings.           She invokes Articles 6 para. 1, 14, 17, and 18 of the Convention and Article 1 of the Protocol No. 1.     &_THE LAW&S           The applicant has complained of the decision of the Frankfurt Regional Labour Court of 22 May 1985, dismissing her claim that her dismissal from employment in a private company was unjustified.   She has also complained of the Labour Court proceedings.           With regard to the judicial decision of which the applicant complains, 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.   The Commission refers, on this point, to its constant case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;   No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           It is true that in this case the applicant also complains that her right under Article 6 para. 1 (Art. 6-1) of the Convention to a fair hearing was violated because the Labour Court allegedly disregarded certain evidence contained in letters that were sent by her former employer to certain employees offering them employment in the E company which took over her employer's assets.   However, the finding of the Regional Labour Court, that vis-à-vis the applicant her former employer had not undertaken any obligation to provide her with employment in the E company, was based on the evidence given by several witnesses.   In these circumstances it cannot be found that the assessment of the evidence by the Regional Labour Court discloses any arbitrariness.   The applicant has not shown that, in order to assess the facts in her case fairly, the letters in question would have had to be taken into account.           Insofar as the applicant also invokes Article 6 (Art. 6) with regard to the proceedings before the Federal Labour Court and the Federal Constitutional Court, it has to be noted that the proceedings in question did not relate to civil rights in the meaning of that provision.   The Federal Labour Court did not decide on the merits of the applicant's claim, but only whether or not leave to appeal had wrongly been refused.   The Federal Constitutional Court, when determining in a preliminary examination whether or not a constitutional complaint is admissible, likewise does not take a decision relating to "civil rights and obligations" in the sense of Article 6 (Art. 6) of the Convention.           It follows that the application is, to this extent, partly manifestly ill-founded, partly incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has further complained of the length of the labour court proceedings.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision 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.           In the present case the applicant failed to raise this complaint before the Federal Constitutional Court and has therefore not exhausted the remedies available to her under German law. Moreover, 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 domestic 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.           For these reasons, the Commission             &_DECLARES THE APPLICATION INADMISSIBLE.&S       Secretary to the Commission                President of the Commission                 (H.C. KRÜGER)                             (C.A. NØRGAARD)