Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 20950/92

M. P.

against

Germany

REPORT OF THE COMMISSION

(adopted on 25 June 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-22). . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 23-48) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 23). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 24). . . . . . . . . . . . . . . . . . . . .6

C. Article 6 para. 1 of the Convention

(paras. 25-47). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 48). . . . . . . . . . . . . . . . . . . . 10

APPENDIX I : PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 11

APPENDIX II : FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 16

I. INTRODUCTION

1. The present Report concerns Application No. 20950/92 introduced

on 9 June 1992 against the Federal Republic of Germany and registered

on 16 November 1992.

The applicant is a German national born in 1937 and resident in

Karlsruhe. She is represented by Mr. P. Kloer, a lawyer practising in

Munich.

The respondent Government are represented by

Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of

Justice.

2. The complaint relating to the length of the proceedings

(Article 6 para. 1 of the Convention) was communicated to the

Government for observations on 28 June 1994. The remainder of the

application was declared inadmissible. Following an exchange of

written observations, the complaint relating to the length of

proceedings was declared admissible on 26 June 1995. The decisions on

admissibility are appended to this Report.

3. Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission, after deliberating, adopted

this Report on 25 June 1996, in accordance with Article 31 para. 1 of

the Convention, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

C.B. REFFI

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

4. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by Germany.

5. The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article 31 para.

2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

6. The applicant is the owner of inherited real estate which is

leased to an Allotment Garden Association (Kleingartenverein) in

Munich. The lease was concluded for the period 1 January 1955 until

31 December 1979. It concerned 44,271 square metres of real estate.

The rent was 0.10 DM per square metre, per year.

7. By letter of 22 November 1976 the applicant denounced the lease

with effect from 31 December 1979. The tenant association disputed the

applicant's right to denounce the lease. Consequently on 20 February

1978 the applicant brought an action for the eviction of the tenant.

8. On 19 April 1978 the Munich I Regional Court (Landgericht)

dismissed the applicant's action. The applicant lodged an appeal

(Berufung) with the Munich Court of Appeal (Oberlandesgericht).

9. On 6 November 1978 the Munich Court of Appeal stayed the

proceedings at the request of both parties in order to await the

outcome of constitutional complaint proceedings relating to allotment

garden law. A decision in that matter was given by the Federal

Constitutional Court (Bundesverfassungsgericht) on 12 June 1979. The

civil proceedings were continued in November 1979.

10. On 14 April 1981 the Court of Appeal again stayed the proceedings

pending new legislation in respect of allotment gardens which had

become necessary on account of the Federal Constitutional Court's

decision of 12 June 1979. On 28 February 1983 a new Federal Allotment

Garden Act (Bundeskleingartengesetz) entered into force and the civil

proceedings were resumed on 14 June 1983.

11. On 12 December 1983 the Munich Court of Appeal dismissed the

applicant's appeal.

12. On 19 December 1983 the applicant lodged an appeal on points of

law (Revision) with the Federal Court of Justice (Bundesgerichtshof).

On 13 December 1984 the Federal Court of Justice admitted her appeal.

13. On 24 May 1985 the Federal Court of Justice suspended the

proceedings in order to obtain a decision of the Federal Constitutional

Court on the question of the compatibility of S. 16 para. 3 of the

Federal Allotment Garden Act with the constitutional right to

protection of property. Similar questions, including one concerning S.

16 para. 4 of the Allotment Garden Act, were submitted to the Federal

Constitutional Court by the Hamm Court of Appeal on 26 June 1987 and

6 March 1992.

14. On 23 September 1992 the Federal Constitutional Court gave its

decision relating to the Allotment Garden Act. The Constitutional Court

held that S. 16 paras. 3 and 4 were unobjectionable while, however, S.

5 para. 1, first sentence, of the Act in question was not compatible

with Article 14 para. 1, first sentence, of the Basic Law (Grundgesetz)

in so far as this provision fixed a limit for the amount of lease and

thereby imposed an excessive and disproportionate burden on property

owners. The latter issue had been examined by the Federal

Constitutional Court ex officio.

15. The decision of 23 September 1992 is published in the Federal

Constitutional Court's official collection of decisions, Vol. 87,

p. 114 to 151 (BVerfGE 87, S. 114-151). It appeals from the decision

that the Federal Constitutional Court received observations from the

Federal Ministry for Regional Planning (Raumordnung, Bauwesen und

Städtebau) on behalf of the Federal Government, the organisation of

German cities (Deutscher Städtetag) and four other non-governmental

organisations, the plaintiff in the respective civil proceedings and

the Federal Court of Justice.

16. On 23 April 1993, in the resumed proceedings, the Federal Court

of Justice dismissed the applicant's appeal on points of law.

B. Relevant domestic law

1. The Federal Allotment Garden Act

17. S. 16 para. 3 of the Federal Allotment Garden Act

(Bundeskleingartengesetz) provides that certain temporary lease

contracts concluded before the entry into force of the Act do not

expire before 31 March 1987. According to paragraph 4 of this

provision, certain lease contracts are extended for an indefinite

period if the community issues within the time-limit set in para. 3 a

development plan (Bebauungsplan) in which the areas of long-term small

allotment garden lease contracts are determined (Festsetzung der

Pachtfläche für Dauerkleingärten).

2. The proceedings before the Federal Constitutional Court

18. According to Article 93 para. 5 in connection with Article 100

para. 1 of the German Basic Law (Grundgesetz) the Federal

Constitutional Court decides inter alia at the request of an ordinary

court on the compatibility of a statute with the Basic Law.

19. Article 100 para. 1 reads in its relevant parts:

[Translation]

"(1) Where a court considers that a statute on whose validity

its decision depends is unconstitutional, the proceedings shall

be stayed and ..., where this Basic Law is held to be violated,

a decision shall be obtained from the Federal Constitutional

Court ..."

[German]

"(1) Hält ein Gericht ein Gesetz, auf dessen Gültigkeit es bei

der Entscheidung ankommt, für verfassungswidrig, so ist das

Verfahren auszusetzen und ... wenn es sich um die Verletzung

dieses Grundgesetzes handelt, die Entscheidung des

Bundesverfassungsgerichtes einzuholen ... "

20. The statute and procedure of the Federal Constitutional Court are

regulated by the Federal Constitutional Court Act (Gesetz über das

Bundesverfassungsgericht).

21. S. 2 of the Federal Constitutional Court Act provides that the

Federal Constitutional Court consists of two Chambers, each composed

of eight judges.

22. In proceedings relating to the question of compatibility of a

statute with the Basic Law (Normenkontrollverfahren) the Federal

Constitutional Court shall, in accordance with SS. 82 and 77 of the

Federal Constitutional Court Act, invite the Federal Parliament

(Bundestag), the Federal Council (Bundesrat), the Federal Government

(Bundesregierung) and, if Federal Law is at issue, the Governments

of the Länder to submit observations within a given time-limit.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

23. The Commission has declared admissible the applicant's complaint

that her case was not heard within a reasonable time by the Federal

Constitutional Court.

B. Point at issue

24. The only point at issue is whether the length of the proceedings

complained of exceeded the "reasonable time" referred to in Article 6

para. 1 (Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

25. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows :

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by ... (a) tribunal ..."

26. The applicant, plaintiff in civil proceedings, criticises only

the length of the proceedings before the Federal Constitutional Court.

These proceedings related to a request submitted to the Federal

Constitutional Court by the civil court dealing with the applicant's

case and raising the question of whether or not the statute applicable

in the matter was compatible with the Basic Law.

1. Applicability of Article 6 para. 1 (Art. 6-1)

27. According to the applicant, the length of the proceedings before

the Federal Constitutional Court falls to be examined under Article 6

para. 1 (Art. 6-1) of the Convention.

28. The Government submit that Article 6 para. 1 (Art. 6-1) does not

apply to proceedings before the Federal Constitutional Court.

29. They consider that the criterion applied in the case-law of the

European Court of Human Rights, namely whether or not the

Constitutional Court's decision was capable of affecting the outcome

of the case which has been litigated before the ordinary courts, is

inappropriate, as there is no conceivable case in which the

Constitutional Court's decision has no effect on the proceedings before

the ordinary courts. The Constitutional Court's proceedings would thus

always be covered by Article 6 para. 1 (Art. 6-1).

30. The Government are of the opinion that proceedings before the

Federal Constitutional Court, taking into account its particular

position and tasks under the German Basic Law, cannot be regarded as

relating to disputes in the civil or criminal field. Rather the

Constitutional Court is the supreme guardian of the Constitution and

checks whether Parliament, authorities and courts have complied with

the Basic Law. As regards the examination of human rights violations,

the Federal Constitutional Court exercises control on the domestic

level similar to that exercised by Convention organs on the basis of

international law. Thus, the Federal Constitutional Court does not,

on account of the concrete norm control proceedings under Article 100

of the Basic Law, become part of the chain of courts provided for the

adjudication of civil cases. While the specific case is a procedural

requirement for setting proceedings in motion for review of a norm, the

importance of the whole proceedings goes far beyond this specific

cause. The particular features of concrete norm review proceedings are

also apparent from the fact that the Federal Constitutional Court can

join several such cases in order to allow for a comprehensive

examination of, and decision on, the questions raised. It acts as a

"national authority" within the meaning of Article 13 (Art. 13) of the

Convention, which does not, however, require a decision "within a

reasonable time".

31. The Government further submit that, having regard to the nature

of the Federal Constitutional Court's duties, a complainant cannot

expect the Federal Constitutional Court always to give its decisions

in the order in which the cases come in. On the contrary, it must be

able to fix the dates for decisions in the light of objective urgency.

They also point out the far-reaching consequences for the functioning

and the structure of the Federal Constitutional Court, should Article

6 (Art. 6) be regarded as applicable. According to the Government, the

two existing Chambers would no longer be able to cope with the Court's

workload.

32. The Commission recalls that Article 6 para. 1 (Art. 6-1) applies

to "all proceedings the result of which is decisive for private rights

and obligations" and that "the character of the legislation which

governs how the matter is to be determined (civil, commercial,

administrative law, etc.) and that of the authority which is invested

with jurisdiction in the matter (ordinary court, administrative body,

etc.) are therefore of little consequence" (Eur. Court H.R., Ringeisen

judgment of 16 July 1971, Series A no. 13, p. 39, para. 94; as recent

authority Stran Greek Refineries and Stratis Andreadis judgment of

9 December 1994, Series A no. 301-B, p. 78, para. 39).

33. The applicant's complaint under Article 6 para. 1 (Art. 6-1)

concerns the length of the constitutional court proceedings relating

to the question of whether or not the statute applicable in the

applicant's civil proceedings is compatible with the Basic Law. The

civil proceedings however relate to the determination of the

applicant's property right. The claim at issue in these proceedings

is as such a "civil right" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention (cf. Eur. Court H.R., Zander judgment of

25 November 1993, Series A no. 279-B, p. 40, para. 27).

34. The Commission recalls that for the purpose of calculating the

relevant period when the reasonable length of civil proceedings is at

issue, proceedings in a Constitutional Court have been taken into

account where the result of such proceedings is capable of affecting

the outcome of the proceedings before the ordinary courts (Eur. Court

H.R., Ruiz-Mateos judgment of 23 June 1993, Series A no. 262,

pp. 19-20, para. 35-37, with further references, as well as the Court's

statement, at p. 19, para. 35, where it declined to revert to the

approach taken in the Buchholz judgment of 6 May 1981, Series A no. 42,

p. 15, para. 48).

35. The Commission finds that these considerations apply a fortiori

in the present case, where the constitutional court proceedings were

initiated by a civil court in connection with and for the purpose of

the determination of a civil claim raised by the applicant. Not only

was the outcome of the constitutional court proceedings decisive for

the determination of her civil rights, namely her property, but in

addition the termination of the constitutional court proceedings was

a prerequisite for the continuation of the civil proceedings.

36. In these circumstances, the constitutional court proceedings in

question fall within the scope of Article 6 para. 1 (Art. 6-1) of the

Convention.

2. Compliance with Article 6 para. 1 (Art. 6-1)

37. The Commission first notes that the applicant lodged her civil

action in February 1978. She has however not alleged a breach of her

right to a hearing within a reasonable time before the case was

submitted to the Federal Constitutional Court on 24 May 1985. The

Commission observes that, at that stage, the proceedings had already

been pending for more than seven years. However, the proceedings were

stayed, upon the request of the parties, from November 1978 until

November 1979 pending proceedings before the Federal Constitutional

Court relating to allotment gardens law, and between April 1981 and

June 1983 pending the enactment of new legislation.

38. The Commission considers that the crucial period to be examined

under Article 6 para. 1 (Art. 6-1) in the present case started on 24

May 1985 when the case was submitted to the Federal Constitutional

Court by the Federal Court of Justice and ended on 23 September 1992

when the Federal Constitutional Court gave a decision. These

proceedings lasted seven years and four months.

39. The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and with the help of the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (cf. Eur. Court H.R., Vernillo

judgment of 20 February 1991, Series A no. 198, p. 12, para. 30). On

the latter point, the importance of what is at stake for the applicant

in the litigation has to be taken into account (cf. Eur. Court H.R.,

Allenet de Ribemont judgment of 10 February 1995, Series A no. 308,

p. 19, para. 47, and p. 21, para. 57).

40. According to the Government, the length of the constitutional

court proceedings in question was due to the workload of the First

Chamber of the Federal Constitutional Court in general and the fact

that in consequence of the German unification several constitutional

complaints relating to various regulations in the Unification Treaty

had to be given priority in view of the importance for the public in

general of the issues raised in these cases. For example the First

Chamber decided on 23 April 1991 that the Basic Law was not violated

by the regulation in the Unification Treaty according to which

expropriations carried out between 1945 and 1949 under the Soviet

occupation authority remained valid. In view of this and other

important cases the examination of the present matter which had

originally been scheduled for the end of 1990 had had to be adjourned.

41. The applicant submits that the length of the proceedings before

the Federal Constitutional Court was excessive and had confiscatory

effects.

42. The Commission first finds that the constitutional court

proceedings were complex in view of the general interest of the issues

raised and the necessity to obtain and take into account observations

from various authorities. The extensive and thoroughly argued decision

of 23 September 1992 confirms that the subject matter was a difficult

one.

43. There is nothing to show that the applicant caused any delays in

these proceedings.

44. As regards the conduct of the Federal Constitutional Court, the

Government have referred to the Federal Constitutional Court's

unexpected increase in workload as a consequence of the German

unification.

45. The Commission recalls that Article 6 para. 1 (Art. 6-1) imposes

on the Contracting States the duty to organise their judicial systems

in such a way that their courts can meet each of its requirements (cf.

Eur. Court H.R., Vocaturo judgment of 24 may 1991, Series A no. 206-C,

p. 32, para. 17; Pizzetti judgment of 26 February 1993, Series A no.

257-C, p. 37, para. 18). In this context weight must be attached not

only to the special features of constitutional court proceedings, but

also to the nature and general importance of the matters raised in the

cases before the Constitutional Court (cf. Eur. Court H.R., Ruiz-Mateos

judgment, loc. cit., p. 23, paras. 51-52).

46. The Commission furthermore recalls that a temporary backlog of

business does not involve liability on the part of the Contracting

States provided that they take, with the requisite promptness, remedial

action to deal with an exceptional situation of this kind (cf. Eur.

Court H.R., Zimmermann and Steiner judgment of 13 July 1983, Series A

no. 66, p. 12, para. 29).

47. It was, however, in the first place for the Federal

Constitutional Court to adapt its procedure to the increased number of

cases as a consequence of German unification. The Commission considers

that the constitutional court proceedings lasting more than seven years

exceeded a reasonable time within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention having regard in particular to the fact

that the underlying proceedings had already been pending for a

considerable period and taking into account that the proceedings in

question were of significant importance not only for the determination

of the applicant's claim but also for other property owners in similar

circumstances.

CONCLUSION

48. The Commission concludes by 24 votes to 5 that in the present

case there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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M.P. v. GERMANY

M.P. v. GERMANY

LEXI