COUNCIL OF EUROPE EUROPEAN COMMISSION OF HUMAN RIGHTS DECISION OF THE.COMMISSION , ON THE ADMISSIBILITY OP Application No. 5207/71 by E R ' . against the Federal Republic, of Germany The European Commission of Human.Rights sitting in private on 13'December 1971, the following members being present: MM-. M. SjjjRENSEN, President. J. E. S, PAWCETT, Vice-President A. SUSTEEHENn G. SPERDUTI P. WELTER - • P. 0. PELAHAYE • E. BUSUTTIL L. KELLBERG B. PAVER ^ T. OPSAHL • K. MMGAN Mr, A. B. McNULTY, Secretary to the Commission, assisted by Mr. K. ROGGE Having regard to ; Art, 25, of the Convention for the Protection of Human Rights and Fundamental Freedoms; t ca .introduced on 27 September 1971 by- E E against the Federal Republic, of G-ermany and registered on 14 October 1971 under file'No. 5207/71? ,,the report of a group of three members of 18- October 1971 rRiile,45,. 1, of the Commission's Rules of Procedure); the President's Order of the same day that the• application should be given precedence under Rule 38 and be communicated to- the respondent Government under Rule 45^ 2; ./•• P •'48.209 06.2 • ■ • . ' . . ■ 5207/71 - 2 - the Government's observations of 11 November 1971 on the admissibility of the application; the applicant's observations in reply of 29 November 1971; the report of a further group of three members of 10 December 1971; Having deliberated, Decides as follov/s: ./. - 3 - 5207/71 THE PACTS ■'^' The facts presented by the parties and apparently not__in _dis£ute between them may be summarised as follows t 1. The applicant is .a German citizen, born in 1895 and living in Wiirzburg. In the proceedings before tbe Commission, she is represented by her son, L R , and by Rechtgaawalt Furt WISSELSBERGER, a lawyer practising in Wurzburg. The licant o widow, owned together with her aoas, L and H R , a house in Wltirzburg which, on 15 January 1969, was sold by auction. In execution of the order confirming the acquisition (Zuschlagsbeschluss ), eviction proceedings were instituted against her by the new owner. 2, In 1969 and 1970, thy applicant made several petitions for a stay of execution under Art. 765a of the Code of Civil Procedure (Zivilprozessordnung). Art, 765a (l) provides: "On application by the debtor, the court in execution proceedings may wholly or in part suspend, prohibit or temporarily staj'" a measure of enforced execution, if the meas\J.re, after full examination of the creditor's need for protection, signifies because of quite special circumstances a hardship incompatible with equity." ("Auf Antrag des Schuldners kann das VollstrecloKisD- gericht eine Massnahme der Zwangsvollstreckung ganz oder teilweise aufheben, untersagen oder einstweilen ein- stellen, wenn die IVIassnahme unter voiler Wiirdigung des Schu.tsbedurfnisses des Glaubigers wegen ganz besonderer tJmgtande eine Harte bedeutet, die mit den guten Sitten nicht vereinbar ist.") The course of the proceedings concerning the applicant's petitions was as follows ; e. On 2 June 1969 she requested a stay of execution for the duration of three months. b. On 13 September 1869 she applied for a further stay of three months in which to move out of the house. This petition was refused by the District Court (Amtsgericht) of W-urzburg on 24 September 1969 on the grounds that the applicant, who then drew a pension of 900 DM per month, should be able to find accommodation elsewhere and, further, that she had failed to show that she had paid to the owner the agreed compensation for the use of the house (Nutzungsentschadigung), The applicant did not appeal from this decision. ^201/71 - 4 - c. On 7 îfebruary 1970 L R , on behalf of his mother, applied for protection from execution. This petition was refused by the District Court on 12 February. On the immediate appeal (sofortige Beschwerde) lodged by the applicant under Art. 793 of the Code of Civil Procedure, the Regional Courb (Landgericht ) of Wiirzbujrg, on 16 April 1970, temporarily s-tayed the execution until 30 September with the proviso that chis suspension should be revoked at the owner's request if the applicant should fail to pay the m.onthly compensation of 25Ô DM. In this conne'ction, the Regional Court made the follov/ing statement t "The debtor, however, must be clear as to the fact that she will have to utilise the protection from execution • nov/ granted to her for finding a solution that is acceptable to both sides. For even chronic illness and a constant danger "co life must not result in making it for ever impossible for a 'creditor to execute a title he has obtained." ("Die Schuldnerin muss sich allerdings daruber im klaren sein, dass sie auch den nnnmohr bowil] i gton Vdlstreckun^s- schutz nutzen muss, um'èine beide Seiten befriedigende Lbsung zu finden. Denn auch chronische Erkrankungen und eine standi g andauei-nde Lebcnsgefahr konnen nicht dazu fiihren, dem GlSubi^er die Vollstreckung eines vor- Hiegenden Titels auf die Dauer unmoglich zu machen." ) On 27 June 1970 the owner asked for the execution to be admitted on the ground thab the applicant had not paid any compensation. This petition was granted by the District Court on 13 August. The applicanb's immediate appeal was dismissed by the R-egional Court on 28 August and her further immediate appeal (weitere soforbige Beschwerde) was rejected by the Court of Appeal (Oberlandesgericht) of Bamberg on 28 August 1970. d. On 21 September 1970 L R , on behalf of his mother, filed a new petition for a temporary stay of execution. He stated that the eviction would endanger the applicant's life and submitted a medical certificate. ./. ­ 5 ­ ' 5207/71 The Dis trie T; Co^irt dv3cided on the saoie day: ­, to request the Board of Public Health (Gesundheits­ arab) of Wurzburg to giv3 its medical opinion as to the applicant's state of health and, ­ in the meanv/bila, to 3t3,y the execution. In its opinion of 6 October 1970, the Board of Public Health stated: ­ that it could net be excluded that an eviction would cndangej.­: the applicant's life; and ­ that, in view'of her age, it cou]d no longer be expected thab h$r state of health (hearb and circulation complaints )■ would substantially improve. By dv­cision of 22 October 1970, the District Court dismissed the applicant's petition of 21 September. lb also revoked its decision'of 21 .September by which it had ordered a provisional stay of execution. The Court noted that the apTilicant ' s condition appeared to be chronic and it considered that the owner of tbe house musi: not for ever be prevented from exercising his rights. Furthermore, tbe applicant had failed to show bhat she had paid the compensation for bhe month of 'October and that .she had tried bo find" accommodation elsewhere. The applii­.art lodgeô an irj­f'ediate appeal with tne /tegicnal Court and re­"­,ues­te'd a sta^i' of cx.­^cution pending the appeal proceecings. ■ On '^i Deceniher 1970 the Regional Court gran ceo the i"­;TJLerT foi'.^­s. temporary sta.y of execution. On 13 Januarji^ 1971? no^vC'Vsrj ix rlismisBed the­ appûa,l, essentially on the {_;roiaac! ''thab chronic illness and o con­ stant dan^.^er to life rnujt not make it impossible for the creditoi to ha"VG a title executed'' ("weix cJ^ronische Erkrankun,3en und die standi^ andauernde lebensgefahr nich"^ aazu fuJiren ko''inor.; fleni Glaubiger die Vollstreckung einea vorliegerjôen Titol& aaf die Dauer unmoglich zu msohen"). In this connection, it wa'^.; irrelevant wîiether the compensatiotj for the use of the house had in fact been paid. The Court also noted that the applicant had a monthly income of over IjOOO Dll and con,sidered thst she could find accommodsxion elâc­where. The applicant's further im.aediate appeal was ou 23 February 1971 rejected by the Court oi Appeal as being ine.dmissiblc. Her objoc'jions (Gegenvort"t;ilungcn) against this decision were overruled "oj the Court ori 1 A'aron 1971. / ■ / • 5207/71 - 6 3. The applicant now made a constitutional appeal ( Verfassungsbcschvrerde). The Federal Constitutional Court (Bundesverfassungsgericht), by a group of three judges, decided on 10 May 1971 that' the constitutional appeal should not be accepted for decision. The Court observed that there were doubts as to the admissibility of the appea.l as regards the 'observance of the time-limit concerned and stated that, in any case, it lacked sufficient prospects of success. The provisions of Art. 765a of the Code of Civil Procedure conconcerning the protection of debtors were'in conformity with the Basic Law (Grundgesets) and their application in the applicant's case did not shov any violation of her i constitutional rights, ,4. In the meanwhile, the bailiff had on 2 March 1971 tried to vacate the house. He stopped the execution, hovrever, because a 'doctor he asked for advice declared that the eviction might endanger the applicant's life. On the owner's objection (Erinnertmg), the District Court, on 21 April 1971, ordered the bailiff to proceed v\dth the execution in the presence of a medical officer (Amtsarzt). On 28 April the bailiff fixed the eviction to take place on 11 May 1971. He informed the parties and, inter alia, the Board of Public Health. On 6 May 1971, the applicant was examined at her home by a medical officer. By letter of the same day, the Board of Public Health informed the Distiict Court that, in view of her bad state of health and high blood pressure, the eviction would endanger the applicant's life. The applicant's irmiediate appeal from the District Court's above decision of 21 April vvas dismissed by the Regional Court on 1 June 1971. Her further immediate appeal was rejected by the Court of Appeal as being inadmissible, 5. A further petition by the applicant for a stay of execution v;as refused by the District Court on 1 October, and her inmiediate appeal v^as dismissed by the Regional Court on 4 October 1971» on the groimd that she had failed to invoke any nev relevant grounè's, Th^" Regional Court noted in this connection that^'the applicant had seized'^ the European Commission of Human Rights but it found that this was irrelevant for the proceedings before the Germ^an Courts, 6. In support of a further petition for a stay of execution of 29 October 1971, the applicant's lawyer filed with the District Court a letter from the Commission's Secretariat of 25 October, stating that her application had been examined by a group of three members of the Commission on ./. - 7 - 5207/71 18 October; that the group had considered that the application appeared to' be admissible; and that the German Federal Goverhment had been invited to Submiit its written observations" on the admissibility before 9 November 1971. He submitted that the applicant's eviction would render the Commission's decision ineffective from the outset. This petition has been communicated by the Court to the creditor for his observations. Bi Complaints The applicant alleges violations of Arts, 2 and 3 of the Conventioni C. _SuJ3_mi s s ipjis_ _o_f j^^ jpart ies I. The re spend ent^ Jjoyernment refrains from raising any objections agains't the 'admissibility of the application* It observes, hov/ever, with regard to the merits of the case tha-t the applicant apparently failed for some time to pay to the creditor the monthly compensation for the use of the house. In order to explain the course of the execution proceedings, the Governinent further submits a report by the com.petent judge of the District Court dated 25 October 1971. This reiDort refersj inter alia, to a letter of 17 December 1970 from the creditor concerning the circumstances leading up to the auction of the applicant's house. According to that letter, the crexiitor had given the applicant's son, L R , a loan of 80,000 DM; the parents had stood bail and the auction later became necessary;" because Mr, i R failed to pay the interest on the loan. In the opinion of the judge in execution proceedings, the applicant could have moved out of the house; her state of health v^ould not prevent it. In fact, she v>;as in hospital not long ago. Only a compulsory removal, with the excitements connected ^-ith it, r-ould be dangerous. Her financial situation, too, vould allov/ her to get other suitable lodgings, II-. The applicant first observes, v.'ith respect to Art* 26 of the Convention-, that she has exhausted domestic remedies up to and including the Federal Constitutional Court, She further submits that the decisions of the German courts refusing her petitions for a stay of execution disregard her right to life (Art. 2) and her human dignity (Art, 3). ./. 5207/71 - 8 - The applicant considers that concern for life should take precedence over concern for property and she points out that, according to the medical opinion of the Wurzburg Board of Public Health of 6 May 1971, an eviction would endanger her life. Even a voluntary removal would be impossible because of her state of health. The applicant does not deny that she was treated as an outpatient in a hospital but it Viras only with difficulty that she was taken there. The applicant never refused to pay compensation for the use of the house. Payment "-as suspended because four eviotion dates v/ere set between Mai-ch and October 1971, so that on each occasion she was made to suffer considerable spiritual torment in addition to her illness. By letter of 17 Noverber 1970 to the District Court, the applicant renuested a ruling that she v^as rcruired to pay 250' DM as monthly compensa^tion for the use of the house. No reply was receiycd to this. On 8 May 1971 her son, L R , wrote to the Court proposing terms for a settlement. The judge v^elcomed this initiative but the creditor refused to negotiate. The applicant contests the creditor's assertion in the proceedings before the Distinct Court that, in accordance with orders from the Wurzburg cific authorities, he needed the site on which the house stood for a car park. The creditor had in fact assured these authorities that he \^ould not demolish the house a,s long as the applicant i^as alive. THE LAW The Coniiiission notes that the applicant alleges violations of Arts. 2 and 3 of the Convention and that the respondent Govemrpent does not raise any objection against the admissibility of the application. It has nevertheless examined ex officio whether the applicant has complied \'ith Art. 26 of the Convention r'hich provides that the Commission may only deal with a matter after all domestic remedies have been exliausted according to the generally recognised rules of international la\;. The Commission observes in this respect that the applicant has put her case before the competent German courts, including the Federal Constitutional Court which, ivhile expressing certain doubts as to the admissibility of the applicant's constitutional appeal as regards her observance of the time-limit concerned, has in its decieion of 10 May 1971 also considered the merits of the case and found tha.t the appea.1 lacked sufficient prospects of success; it therefore decided not to accept the appeal for decision. The Cominission concludes that the applicant has complied "dth the condition of exhaustion of domestic remedies* ./. I V - 9 - 5207/71 Art. 26 of the Convention further provides that the Commission may only deal with a matter v;ithin a period of six months from the date on which the final decision was taken. The Commission observes in this respect that the final decision, that is the decision of the Federal Constitutional Court, was taken on 10 May 1971, and that the present application was introduced with the Commission four and a half months later, namely, on 27 September 1971. It follows that the applicant has complied with the six-m.onths' rule. The Commission has finally had regard ex officio to Art. 27 (2) of the Convention which provides inter alia that it shall declare 'inadmissible any petition which it considers manifestly ill-founded. In this connection, the Commission has noted the applicant's complaints and finds that they raise complex questions of law and fact which cannot be determined at the stage of admissibility but require an examination of the merits of the case. It follows that the application cannot be rejected as being manifestly ill-founded." Now therefore the Commission DECLARES THE APPLICATION ADMISSIBLE Secretary to the Commission President of the Commission (A. B. McNULTJ (M. S0RENSEN)