Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 17820/91

F.W.P.

against

Germany

REPORT OF THE COMMISSION

(adopted on 25 January 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-12) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 13-17). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 18-32) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 18-28). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 29-32). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 33-59) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 33). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 34). . . . . . . . . . . . . . . . . . . . .6

C. As regards Article 6 para. 1 of the Convention

(paras. 35-58). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 59

APPENDIX I: HISTORY OF THE PROCEEDINGS . . . . . . . . . 10

APPENDIX II: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 12

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a German citizen, born in 1933 and resident in

Hanover.

3. The application is directed against Germany. The respondent

Government were represented by Dr. J. Meyer-Ladewig.

4. The case concerns the length of norm control proceedings before

the Federal Constitutional Court in the context of civil proceedings.

The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 15 August 1990 and registered

on 19 February 1991.

6. On 2 July 1991 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 16 December 1991

after an extension of the time-limit. The applicant replied on

18 March 1992 and submitted supplementary information on

10 February 1993.

8. On 16 May 1992 the Commission adjourned the examination of the

application pending the judgment of the European Court of Human Rights

in the Ruiz Mateos case. On 10 January 1994 the Commission decided to

propose to the parties that they submit further observations on the

admissibility and merits in the light of the Ruiz Mateos judgment which

had in the meantime been pronounced on 23 June 1993.

9. On 21 February 1994 the Government submitted supplementary

observations. The applicant did not reply. By letter of

16 January 1994 he had informed the Commission about the state of the

civil proceedings.

10. On 10 January 1995 the Commission declared the application

admissible.

11. The text of the Commission's decision on admissibility was sent

to the parties on 19 January 1995 and they were invited to submit such

further information or observations on the merits as they wished.

12. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

13. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

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

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

14. The text of this Report was adopted on 25 January 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

15. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

16. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

17. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

18. On 23 May 1980 the applicant brought a civil action against the

city of Höxter and against an Allotment Garden Association

(Kleingartenverein) with a view to recovering a piece of land which he

had received from his father, a farmer, and which had been leased to

the defendant city in 1949 for allotment purposes.

19. On 14 August 1980 the proceedings were stayed (ausgesetzt)

pending new legislation in respect of allotment gardens which had

become necessary on account of a decision of the Federal Constitutional

Court (Bundesverfassungsgericht) given on 12 June 1979.

20. On 28 February 1983 a new Federal Allotment Garden Act

(Bundeskleingartengesetz) entered into force and the civil proceedings

were resumed at the applicant's request on 17 March 1983.

21. From 6 June 1983 until 20 August 1985 the proceedings were

suspended (Ruhen des Verfahrens) with the applicant's consent in view

of the fact that according to the defendant a construction plan

(Bebauungsplan) was in preparation concerning the allotment garden area

in question.

22. On 7 November 1985, after a hearing which the applicant had

requested on 20 August 1985, the Paderborn Regional Court (Landgericht)

gave a judgment granting the applicant's action in part. The

defendants were ordered to return to the plaintiff seven parcels of

land of a total size of about 8,5 hectares. The judgment was declared

provisionally enforceable against payment of a security (Kaution) in

the amount of 2,000,000 DM.

23. The applicant's request to suspend the proceedings and submit the

question whether or not certain provisions of the new Federal Allotment

Garden Act were in conformity with the Basic Law (Grundgesetz) was not

granted by the Regional Court.

24. The defendants appealed against the judgment of 7 November 1985

and on 20 May 1987 the Court of Appeal (Oberlandesgericht) in Hamm

decided to suspend the proceedings and to submit to the Federal

Constitutional Court the question whether Section 16 (3) and (4) of the

Federal Allotment Garden Act was compatible with the Basic Law. The

Court considered that the provisions in question were relevant for the

adjudication of the civil dispute and therefore their constitutionality

had first to be determined.

25. On 26 June 1987 the case was submitted to the Federal

Constitutional Court. The Federal Court (Bundesgerichtshof) had on

24 May 1985 likewise submitted a request to the Federal Constitutional

Court about the compatibility of Section 16 (3) of the Federal

Allotment Garden Act with the Constitution. Both cases were joined.

Section 16 (3) of the Federal Allotment Garden Act provides that

certain temporary lease contracts concluded before the entry into force

of the Act do not expire before 31 March 1987. Para. 4 of the Section

provides that 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).

26. By letter of 16 November 1990 the applicant was informed by the

Federal Constitutional Court that in view of the Court's workload,

which had increased following German unification, a decision on the

constitutionality of the Allotment Garden Act could not be expected

before 1991. On 23 September 1992 the First Chamber of the Federal

Constitutional Court gave judgment in the matter finding that

Section 16 (3) and (4) were unobjectionable while, however, Section 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.

27. 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, 114-151). It follows 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 from the Federal

Court.

28. Subsequent to the Constitutional Court's decision of

23 September 1992, the Court of Appeal resumed the proceedings but no

judgment has yet been given.

B. Relevant domestic law

29. 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.

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 ... "

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

regulated by the Federal Constitutional Court Act (Gesetz über das

Bundesverfassungsgericht).

31. Section 2 of the Federal Constitutional Court Act provides that

the Federal Constitutional Court consists of two Chambers, each

composed of eight judges.

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

statute with the Basic Law (Normenkontrollverfahren) the Federal

Constitutional Court shall, in accordance with Sections 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 in question, the Governments

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

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that the civil proceedings which he instituted on 23 May 1980 and which

are still pending were unreasonably long.

B. Point at issue

34. The only point at issue therefore is whether the length of the

proceedings, in particular the constitutional court proceedings,

exceeded the "reasonable time" referred to in Article 6 para. 1

(Art. 6-1) of the Convention.

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

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

Convention provides as follows:

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

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

time by (a) tribunal ..."

36. 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.

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

37. 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 as the civil proceedings had to

be adjourned pending the outcome of these proceedings.

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

apply to the proceedings before the Federal Constitutional Court

relating to the request of a civil court about the compatibility of a

statute with the Basic Law.

39. 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 was no conceivable case in which the

Constitutional Court's decision had 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). It had however not

been envisaged by the German Government at the time of the ratification

of the Convention that the constitutional court proceedings would fall

under Article 6 (Art. 6).

40. 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 a dispute over "civil rights and obligations". Rather the

Constitutional Court decides on the constitutional aspects of a case

and not on the merits of the dispute between the parties.

41. The Government submit that the role of the Federal Constitutional

Court is to interpret and preserve constitutional law in an objective

manner. It performs domestically a control function comparable with

that operated by the organs of the Convention on an international

level. It also acts as a "national authority" within the meaning of

Article 13 (Art. 13) of the Convention. That Article does not,

however, require a decision "within a reasonable time".

42. The Government further submit that in view of the very special

significance of norm control proceedings, an individual affected by

such proceedings cannot always expect the Federal Constitutional Court

to take its decision according to the sequence in which the submissions

are received. Instead the very nature of the Federal Constitutional

Court's work means that it should have the opportunity to schedule its

decisions according to the urgency of the subject-matter concerned.

In its decision, the Court has to weigh up factors extending beyond the

limits of the individual case which are in part similar to those taken

into consideration by a legislator before issuing or rescinding a legal

norm. Its proceedings cannot therefore be measured according to the

same yardstick as those heard by courts taking decisions on individual

cases only.

43. 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; Stran Greek

Refineries and Stratis Andreadis judgment of 9 December 1994, Series

A no. 301-B, p. 78, para. 39).

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

concerns in particular 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 entitlement at issue 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).

45. 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,

abandoning the approach taken in the Buchholz judgment of 6 May 1981,

Series A no. 42, p. 15, para. 48).

46. 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 his civil rights, namely his property, but in

addition the termination of the constitutional court proceedings was

a prerequisite for the continuation of the civil proceedings.

47. In these circumstances, the constitutional court proceedings in

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

Convention.

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

48. The Commission first notes that the applicant lodged his civil

action on 23 May 1980. He has however not alleged that these

proceedings were unduly delayed before the case was submitted to the

Federal Constitutional Court on 26 June 1987. In fact before the

latter date the proceedings had to be stayed from 14 August 1980 until

17 March 1983 pending new legislation (see paras. 19 and 20).

Subsequently they were suspended with the applicant's consent from

6 June 1983 until 20 August 1985 on account of the preparation of a new

construction plan (see para. 21). The length of that part of the

proceedings does not in these circumstances appear to be unreasonable.

49. The Commission therefore considers that the crucial period to be

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

on 26 June 1987 when the case was submitted to the Federal

Constitutional Court by the Hamm Court of Appeal and ended on

23 September 1992 when the Federal Constitutional Court gave a

decision. These proceedings lasted five years and almost three months.

50. 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 (see 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,

paras. 47, 57).

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

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

Chamber of the 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. The Government also point

out that the case had to be decided by the Chamber, that means it could

not have been delegated to a panel of three judges.

52. The applicant submits that whenever the Constitutional Court

holds a legislative provision to be unconstitutional the matter will

be prolonged by the necessity to institute time-consuming proceedings

for the enactment of new legislation. Therefore he considers that norm

control proceedings should be carried out with particular diligence.

53. 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 argumented

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

difficult one.

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

these proceedings.

55. 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.

56. 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).

57. 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).

58. 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 the German unification. The Commission

considers that the constitutional court proceedings lasting more than

five years exceeded a reasonable time within the meaning of Article 6

para. 1 of the Convention having regard in particular to the fact that

the Constitutional Court was already seized in the present matter on

24 May 1985 by the Federal Court 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

59. The Commission concludes unanimously 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)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

15 August 1990 Introduction of the application

19 February 1991 Registration of the application

Examination of Admissibility

2 July 1991 Decision of the Commission to invite

the Government to submit observations

on the admissibility and merits of

the application

16 December 1991 Government's observations

18 March 1992 Applicants' observations in reply

16 May 1992 Decision to adjourn the case pending

the judgment of the European Court of

Human Rights in the Ruiz Mateos case

10 January 1994 Decision of the Commission to invite

the parties to submit further written

observations in the light of the Ruiz

Mateos judgment of 23 June 1993

22 February 1994 Government's additional observations

in reply

14 April 1994 Applicant's additional observations

in reply

10 January 1995 Commission's deliberations and

decision on admissibility

Examination of the merits

19 January 1995 Decision on admissibility transmitted

to the parties. Invitation to

parties to submit further

observations on the merits.

1 March 1995 Possibility of friendly settlement

rejected by Government.

15 May 1995 Consideration of state of

proceedings

Date Item

_________________________________________________________________

21 October 1995 Consideration of state of

proceedings

25 January 1996 Commission's deliberations on the

merits, final vote and adoption of

the Report

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F.W.P. v. GERMANY

F.W.P. v. GERMANY

LEXI