OZGUR-KARADUMAN v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Ms Tülin Özgür-Karaduman, has the citizenship of Germany and Turkey. She was born in 1979 and lives in Mannheim in Germany. She was represented before the Court by Mr M. Schmitt, a lawyer practising in Mannheim. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the German Ministry of Justice. The Turkish Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 and Rule 44), did not indicate that they wished to exercise that rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 May 1999 the applicant sold her car to Ms V. At that time, she lived at her father’s place of residence in Mannheim. On 2 August 1999 Ms V. lodged a motion against the applicant with the Mannheim District Court (Amtsgericht), claiming DEM 500 as damages for the car’s alleged defects. The motion and all further correspondence were served to the place of residence of the applicant’s father. On 9 September 1999 the District Court decided to apply a summary procedure (Verfahren nach billigem Ermessen) pursuant to section 495a of the Code of Civil Procedure (Zivilprozessordnung, see relevant domestic law below). On 12 October 1999 Ms V. extended her action and claimed further DEM 1,239.64. By partial judgment (Teilurteil) of 22 October 1999 the District Court ordered the applicant, who had not participated in the proceedings, to pay DEM 500 plus interests to Ms V. By final judgment (Schlussurteil) of 19 November 1999 the District Court ordered the applicant to pay further DEM 1,239.64 plus interests to Ms V. Both judgments were delivered to the place of residence of the applicant’s father. On 3 April 2000 the applicant, represented by counsel, lodged an action for declaration of nullity (Nichtigkeitsklage) pursuant to section 579 § 1 no. 4 of the Code of Civil Procedure, requesting the Mannheim District Court to set aside its judgments of 22 October and 19 November 1999. She alleged that she had left Germany on 14 May 1999 with the aim to live permanently in Turkey. She had neither informed her father about her departure nor left her new address. She had not learned about the civil proceedings until her return to Germany on 4 March 2000, when her father gave her the mail which had accumulated during her absence. In support of her allegations, she submitted her own affidavit (eidesstattliche Versicherung). She further nominated five witnesses, including her father, her mother, two former friends of hers and the postman who had delivered the final judgment of 19 November 1999 to her father’s place of residence. The defendant, Ms V., contested these submissions. She pointed out that she had received a demand for payment from the applicant, which was dated 26 October 1999 and had been posted in Germany. The applicant replied that this letter had been posted by a friend of hers, whom she named as a witness. On 7 June 2000, following a hearing, the Mannheim District Court declared the applicant’s action inadmissible. While leaving the question undecided whether the action for declaration of nullity was applicable in the present case, it found that the applicant had failed to establish to the satisfaction of the court (glaubhaft machen) that she had lodged her action within the statutory time-limit of one month after having learned about the two judgments. Taking into account both parties’ submissions, the Regional Court did not attach credence to the applicant’s own affidavit. It considered, firstly, that the applicant had not submitted admissible evidence in support of her allegation that the demand for payment had been posted not by the applicant herself, but by a friend of hers. Furthermore, according to the acknowledgment of service (Zustellungsurkunde) of 24 November 1999, the final judgment had been served on the applicant herself. The applicant had not disproved that fact. The District Court further noted that the applicant had alleged that she had received the partial judgment of 22 October 1999 on her return to Germany. This allegation was contradicted by the fact that the copy of the partial judgment which was to be served on the applicant was located in the case-file of the first set of proceedings, because it had not been picked up by the addressee. The District Court further pointed out that the applicant could have submitted further evidence, such as her air tickets or affidavits given by other persons. She failed however to do so. Referring to section 294 § 2 of the Code of Civil Procedure, the Regional Court decided not to hear any witnesses, as these had not been presented by the applicant during the hearing. The applicant subsequently lodged an appeal with the Mannheim Regional Court (Landgericht). She argued, inter alia, that the District Court should have heard the witnesses, as section 294 § 2 of the Code of Civil Procedure did not apply in the instant case. She alleged that it would have been up to the District Court to summon the witnesses. She further maintained that the District Court, during the hearing, had not mentioned that any witnesses had been missing. On 23 February 2001 the Mannheim Regional Court rejected the applicant’s appeal. The Regional Court noted, firstly, that the District Court, in the first set of proceedings, had violated the rules of civil procedure by applying the summary procedure even though the value of the issue exceeded the sum of DEM 1,200. However, this procedural error did not justify an annulment of the judgments. Secondly, the Regional Court confirmed that the applicant had not established that she had lodged her action within the statutory time-limit. The Regional Court shared the District Court’s doubts as to the credibility of the applicant’s own affidavit. It further considered that the applicant had failed to explain why she had kept her German bank account and why she had not deregistered with the German authorities. Contrary to the applicant’s point of view, the District Court had not been obliged to summon any witnesses. According to Section 294 § 2 of the Code of Civil Procedure it was only admissible to take evidence by means which were immediately available to the court. It followed that only those means of evidence had to be considered which had been presented by the respective party. According to the Regional Court, the opinion that the court was obliged to summon witnesses was consistent neither with the wording of the legislation nor with the case-law of the Federal Court of Justice. In this respect, the Regional Court referred to a judgment of the Federal Court of Justice of 16 December 1959 (published in that court’s official collection [BGHZ] volume 31, p. 351). On 9 April 2001 the Federal Constitutional Court, without giving reasons, refused to accept the applicant’s constitutional complaint for adjudication. The decision was served on the applicant’s counsel on 17 April 2001. The relevant provision of the Code of Civil Procedure (Zivilprozessordnung), as applicable at the relevant time, reads as follows: Section 495a Summary procedure “If the sum in dispute does not exceed one thousand and two hundred German marks, the court may determine its procedure at its reasonably exercised discretion (nach billigem Ermessen). Upon request, it shall hold a hearing.” The summary procedure was introduced in 1990 with the aim to unburden the district courts by facilitating proceedings with a low value in dispute. When applying this procedure, a district court is not bound by the formal requirements of the Code of Civil Procedure. It has, however, to respect the right to a fair hearing (see the references in Zöller/Greger, Zivilprozessordnung (Commentary on the Code of Civil Procedure), 23rd ed. 2002, § 495a, marginal note 8). The relevant provisions of the Code of Civil Procedure read as follows: Section 579 Action for declaration of nullity “(1) An action for declaration of nullity is admissible: 4. if a party had not been properly represented during the proceedings...” According to the case-law of several appeal courts, the above-cited provision can also be applied by analogy in cases in which a party was ignorant of the proceedings through no fault of his or her own (see the references in Zöller/Greger, cited above, § 579, marginal note 6a). Section 586 Time-limit “(1) The action [for declaration of nullity] has to be lodged within a time-limit of one month. (2) The time-limit shall start on the day on which the party learns the ground of nullity... (3) In case a party had not been properly represented before the court...the time-limit shall start on the day on which the judgment is served on that party...” Section 589 Examination of admissibility “(1) The Court shall examine ex officio if the action is admissible and...if it has been lodged within the statutory time-limit. In case of non-compliance, the action shall be rejected as being inadmissible. (2) The facts which establish that the action has been lodged within the time-limit have to be established to the satisfaction of the court (glaubhaft machen).” Section 294 Establishing facts to the satisfaction of the court (Glaubhaftmachung) “(1) A party who has to establish an assertion to the satisfaction of the court may employ all means of evidence and may be allowed to submit their own affidavit. (2) Any evidence which cannot be taken immediately is inadmissible.” The relevant provisions on appeals against first instance judgments read as follows: Section 511 “Appeals on facts and law shall take place against the final judgments issued in the first legal instance.” Section 511 a “(1) Appeals on facts and law shall be inadmissible if the value of the subject matter in dispute does not exceed one thousand and five hundred German marks ...” Section 513 “(1) Default judgments may not be challenged in the appeal by the party against whom they have been issued. (2) A default judgment against which the objection as such is not available shall be subject to appeal to the extent that it is based upon the claim that no default has taken place. Section 511a shall not be applicable.” On 1 January 2002 a new section 321a entered into force, which allows a court, on request of a party, to set aside its own final judgment in case of a violation of the right to a fair hearing.