RIPPE v. GERMANY
Inadmissible
The applicant, Mr Utz Rippe, is a German national who lives in Petershagen in Germany. He was represented before the Court by Mr H. Bahr, a lawyer practising in Celle. The applicant was the managing partner of the Rippe Automatenbetriebe GmbH (henceforward referred to as “R-Company”). In 1998 the R-Company rented commercial premises from another company (“the lessor”), in order to operate its business. In October 2000 the R-Company became insolvent. By agreement of January 2001 the applicant acceded to the lease as from March 2001. As from February 2001 the R-Company got into arrear with three months’ rent. By letter of 9 May 2001 the lessor sent the R-Company a request for payment. By letter to both the R-Company and the applicant of 18 May 2001 the lessor terminated the lease without notice (fristlose Kündigung). By 23 May 2001 the applicant had paid the arrears of rent. The lessor lodged an action for eviction with the Bückeburg Regional Court (Landgericht), alleging that he had sent the applicant two requests for payment on 3 April and 5 April 2001. As the applicant contested this, the Regional Court decided to take evidence by hearing the lessor’s secretary as a witness. By judgment of 4 February 2002 the Regional Court, following a public hearing, ordered the applicant’s eviction from the premises. That court found that the lessor had proved that he had posted the letters to the applicant. It did not attach credence to the applicant’s claim that he had not received these letters. By letter of 7 May 2002 the applicant, who was represented by counsel, submitted his reasons for appeal, claiming that the Regional Court’s assessment of the evidence was contrary to the case-law of the Federal Court of Justice. According to the applicant, the mere fact that the witness had posted the letters to the applicant did not suffice to prove that he had actually received them. In this respect, he submitted several possibilities as to how the letters could have been lost before reaching their destination. By letter of 16 May 2002 the Celle Court of Appeal (Oberlandesgericht) informed the applicant of its intention to reject the appeal without a hearing pursuant to section 522 § 2 of the Code of Civil Procedure (Zivilprozessordnung, see relevant domestic law below). It further invited the applicant to submit written comments within two weeks. The Court of Appeal, following a preliminary assessment, found that the applicant’s appeal lacked prospect of success. It considered that, according to the terms of the tenancy agreement, it would have been sufficient to inform the applicant about the arrear payments. The applicant had been duly informed by letter of 9 May 2001. Even though this letter had not been directed to the applicant, but to the R-Company, the applicant had undisputedly received it. In any event, the appeal lacked prospect of success as the Regional Court’s assessment of the facts had neither been contrary to the law nor to the case-law of the Federal Court of Justice. The applicant had not submitted that the Regional Court had wrongly established the facts. By letter of 4 June 2002 the applicant requested the Court of Appeal to abstain from applying section 522 § 2 of the Code of Civil Procedure and to hold an oral hearing on his appeal. He stated that section 522 § 2 should only be applied if an appeal was manifestly ill-founded. Referring to the Court’s case-law, the applicant further pointed out that Article 6 § 1 of the Convention granted a right to an oral hearing in appeal proceedings, which could only be dispensed with if this was justified by the special features of the proceedings involved. The Court of Appeal had based its letter on different facts than the Regional Court. Under these circumstances, it was necessary to hold a fresh oral hearing. The applicant further denied having gained any knowledge of the content of the letter of 9 May 2001, as he had transferred this letter unopened to the R-Company’s administrator in insolvency. He further maintained that the Regional Court’s assessment of the evidence had not been in accordance with the law. On 6 June 2002 the Court of Appeal, by unanimous decision, rejected the applicant’s appeal pursuant to section 522 § 2 of the Code of Civil Procedure. The Court of Appeal stated that the appeal had no prospect of success, that the matter at issue was not of fundamental importance, and that is was not necessary to allow the appeal in order to safeguard a consistent application of the law. It found, first, that section 522 § 2 did not require that an appeal was manifestly ill-founded. Notwithstanding, the applicant’s appeal was manifestly ill-founded. The Court of Appeal noted that the applicant had conceded having received the letter of 9 May 2001. By sending this letter, the lessor, who did not know about the R-Company’s insolvency, had taken the necessary steps to inform the applicant about the arrears of rent. It did not matter whether the applicant had gained knowledge of the content of that letter, as he had been in a position to do so. Referring to the reasons set out in its letter of 16 May 2002, the Court of Appeal confirmed that the Regional Court’s assessment of the evidence had not been contrary to the law. With respect to Article 6 of the Convention, the Court of Appeal found as follows: “This provision [section 522 § 2 of the Code of Civil Procedure] is closely linked to the examination of the admissibility of the appeal by the court, as can be seen in the context with section 522 § 1. Accordingly, the applicant’s references to Article 6 of the Convention are not suited to compel the Senate to hold an oral hearing irrespectively of the appeal’s prospect of success. Within the ambit of Article 6, the necessity of an oral hearing in appeal proceedings does not arise, if only the admissibility of the appeal is at issue, if the applicant’s grounds of appeal are irrelevant for the decision or if the appeal can adequately be dealt with on the basis of the content of the case-file (see Zöller/Gummer, Commentary to the Code of Civil Procedure, 23rd ed., § 522, marginal note 36). It follows that Article 6 of the Convention – contrary to the defendant’s point of view – does not require a public hearing in every case in which an appeal is not manifestly ill-founded, but leaves sufficient room for the application of section 522 § 2 of the Code of Civil Procedure. It does not require a specific degree of lack of prospect of success.” On 15 July 2002 the applicant lodged a constitutional complaint alleging a violation of his rights under the German Constitution and under Article 6 of the Convention. He further requested the Federal Constitutional Court to suspend his eviction from the business premises by interim measure. By decision of 5 August 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s complaint for adjudication for lack of prospect of success. That court found that the Court of Appeal’s interpretation of the law did not violate the applicant’s constitutional rights. In particular, it neither violated the applicant’s right that his case be adjudicated by the competent judge (Recht auf den gesetzlichen Richter), nor was the limitation of access to the appeal proceedings disproportionate. This decision was served on the applicant’s counsel on 12 August 2002. According to the former Code of Civil Procedure, appeal proceedings against a decision given by a court of first instance allowed a complete review of both facts and law. On 1 January 2002, reform legislation entered into force (Zivilprozess-Reformgesetz), which was aimed at facilitating and thus expediting civil proceedings, inter alia by strengthening the position of the first instance courts and by unburdening second instance proceedings. Following this legislation, appeal proceedings are primarily devised as a means of controlling and rectifying errors made by the courts of first instance. The relevant provisions as in force since January 2002 read as follows: Section 513 Grounds of appeal “(1) An appeal can only be lodged on the ground that the decision is based on a violation of the law...or that the facts which are relevant according to section 529 justify a different decision. ...” Section 522 Examination of admissibility, decision on rejection “(1) The Court of Appeal has to establish on its own motion whether the appeal is admissible (statthaft) and whether it has been lodged in accordance with the formalities and time-limits as prescribed by law. If any of these prerequisites is lacking, the appeal has to be rejected as being inadmissible. The decision is taken by court-order which is subject to an appeal on points of law. (2) The Court of Appeal promptly rejects the appeal by unanimous decision if it is convinced that 1. the appeal does not have prospect of success, 2. the legal matter is not of fundamental importance and 3. the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by the court of appeal. The court of appeal or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and has to give the appellant the opportunity to submit observations within a set time-limit. The decision pursuant to sentence one has to be reasoned, if the reasons for the rejection are not included in the letter of information pursuant to sentence two. (3) The decision given pursuant to paragraph two, sentence one is not subject to an appeal. “ Section 529 Scope of examination by the Court of Appeal “(1) The Court of Appeal has to base its hearing and decision on: 1. the facts established by the first instance court, unless there are concrete indications that raise doubts as to the correctness or completeness of the establishment of the relevant facts which warrant a fresh establishment; 2. new facts, as long as it is admissible to consider these. ...” In case the Court of Appeal rejects an appeal by judgment following an oral hearing, the appellant may, subject to certain provisions, file a request to be granted leave to appeal on points of law to the Federal Court of Justice.