CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 1988

.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. 13550/88                       by Walter SCHRAFT                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 9 December 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS                   H. VANDENBERGHE              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 18 January 1988 by Walter SCHRAFT against the Federal Republic of Germany and registered on 26 January 1988 under file No. 13550/88;           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, born in 1931, is a German national and resident at Renningen.           His previous Applications No. 9524/81 concerning court proceedings in 1981 and 1982 and No. 13342/87 concerning the challenge of a local building plan were declared inadmissible by the Commission on 4 October 1982 and 4 July 1988 respectively.           The present application concerns two different sets of proceedings.                                   I           In 1983 the applicant raised objections to the request of the Renningen Water Board (Wasserversorgungsgruppe) for permission to produce ground water from a well at Renningen.   He submitted that the envisaged production would prejudice his estate at a distance of 600m. The Böblingen Administrative Office (Landratsamt) competent to grant the permission concerned, having regard to a technical expert opinion of the Regional Geological Authority (Geologisches Landesamt), granted the permission on 27 September 1984.   The applicant's appeal (Widerspruch) remained unsuccessful.           On 18 June 1986 the Stuttgart Administrative Court (Verwaltungsgericht), having held an oral hearing, dismissed the applicant's action to revoke the permission.   The Court found in particular that the applicant had failed to prove that the production of ground water from the well in question could cause damage to his estate.   The Court had, in this respect, regard to the technical expert opinion of 1984, a supplementary opinion given by an official expert (Amtssachverständiger) and the expert's further explanations at the hearing of 18 June 1986.           On 31 October 1986 the Baden Wuerttemberg Administrative Court of Appeal (Verwaltungsgerichtshof), having regard to the parties' written submissions, unanimously dismissed the applicant's appeal (Berufung).   It considered that neither the taking of further evidence nor an oral hearing was necessary.   The Court found in particular that the fact that the expert's submissions at the hearing had not been recorded did not render the proceedings unfair on the ground that the applicant had been able to comment thereupon at the hearing and the Administrative Court had delivered its judgment at the close of the hearing.   Moreover, the Court considered that the applicant, having no expert knowledge, had failed to substantiate his objections to the expert opinion.   The Court did not grant leave to appeal on points of law (Revision).           On 20 January 1987 the Baden Wuerttemberg Administrative Court of Appeal dismissed the applicant's challenge of its judges.   The Court of Appeal found that the statement in its decision concerning the applicant's expert knowledge obviously did not concern his intelligence in general.           On 6 April 1987 the Federal Administrative Court (Bundes- verwaltungsgericht) dismissed the applicant's request for leave to appeal (Nichtzulassungsbeschwerde).           On 27 July 1987 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) concerning the main administrative court proceedings as offering no prospect of success.   On 27 August 1987 it refused to admit his constitutional complaint as regards the decision of 20 January 1987 partly as being inadmissible, partly as offering no prospect of success.                                   II           On 26 January 1983 the Leonberg Tax Office (Finanzamt) dismissed the applicant's request to have the purchase tax on his real estate reduced retroactively.           On 12 November 1986 the Baden Wuerttemberg Tax Court (Finanzgericht) dismissed the applicant's action concerning his purchase tax.   On 22 July 1987 the Federal Tax Court (Bundesfinanzhof) dismissed the applicant's request for leave to appeal on points of law (Nichtzulassungsbeschwerde).           On 5 November 1987 the Federal Consitutional Court refused to admit the applicant's constitutional complaint of the tax proceedings as offering no prospect of success.       COMPLAINTS   1.       The applicant complains that the decisions of the German authorities concerning the permission to produce ground water were incorrect and that the court proceedings concerned were unfair.   He considers in particular that he could not properly comment upon the expert's opinion which, due to a technical problem, had not been recorded.   The Stuttgart Administrative Court had, therefore, not been able properly to assess the evidence in the present case.   He also complains that he had no oral hearing before the Baden Wuerttemberg Administrative Court of Appeal.   He invokes Articles 6 para. 1, 8 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.   2.       The applicant also complains under Article 6 para. 1 of the Convention that the decision taken in the tax proceedings were not correct and that the proceedings concerned were unfair.       THE LAW   1.       The applicant complains under Articles 6 para. 1, 8 and 14 (Art. 6-1, 8, 14) of the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention that the Administrative Court decisions concerning the Water Board's permission to produce ground water were incorrect and that he had no fair hearing in the proceedings concerned.           With regard to the judicial decisions 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 established 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).           Furthermore, the Commission finds that the applicant failed to show that he could not present his case properly or that the proceedings were otherwise unfair and thus violated Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission considers in particular that the applicant had been able to comment upon the expert opinion in the course of the hearing before the Stuttgart Administrative Court. He did not challenge the expert in these proceedings.   Furthermore, the assessment of the evidence concerning the technical implications of the envisaged production of ground water does not appear arbitrary.           As regards the applicant's complaint that he had no oral hearing before the Baden Wuerttemberg Administrative Court of Appeal as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention, the Commission recalls that this provision applies to appeal or cassation proceedings in a way which clearly depends on the special features of such proceedings (cf.   No. 7211/75, Dec. 6.10.1976, D.R. 7 p. 104). The decisive elements are the nature of the national appeal system, the scope of the court's functions and the manner in which the individual's interests are presented and protected before the court (see Eur.   Court H.R., Ekbatani judgment of 26 May 1988, Series A No. 134, paras. 27 and 28).   Furthermore, the principle of publicity must be fully respected at least in one instance dealing with the merits of a case (Adler v.   Switzerland, Comm.   Report. 15.3.85, to be published in D.R.).           In the present case, the Commission notes that the Stuttgart Administrative Court, which decided at first instance on the merits of the applicant's challenge concerning the permission to produce ground water, held a public hearing in the course of which the applicant was able to present his case and evidence was taken.   The Baden Wuerttemberg Administrative Court of Appeal, upon the applicant's appeal, had to examine whether the Stuttgart Administrative Court had committed procedural errors or whether its decision was incorrect under substantive law.   Having regard to the proceedings before the Administrative Court of Appeal and the parties' written submissions in the appeal proceedings, the Court of Appeal did not deem it necessary to take further evidence or to have an oral hearing, but dismissed the appeal unanimously.           The Commission, having in particular regard to the subject matter of the administrative court proceedings concerned, finds that the Court of Appeal was not called upon to decide any questions such as issues related to the applicant's personal character, or his manner of life which could not, as a matter of fair trial, have been properly determined without his full rehearing.           Moreover, the Comission considers that the applicant's submissions do not raise any issue under Articles 8 or 14 (Art. 8, 14) of the Convention or Article 1 of Protocol No. 1 (P1-1) to the Convention.           It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains under Article 6 para. 1 (Art. 6-1) of the Convention that his proceedings concerning the reduction of purchase tax were unfair.   However, the Commission finds that the tax proceedings concerned did not relate to the applicant's civil rights and obligations or to any criminal charge against him.   Article 6 para. 1 (Art. 6-1) of the Convention therefore does not apply to the proceedings concerned.   Consequently, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) 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)