AS TO THE ADMISSIBILITY OF

                      Application No. 30470/96

                      by Manfred and Margot ZIPPEL

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

           Mrs   J. LIDDY, President

           MM    M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 6 January 1996 by

Manfred and Margot ZIPPEL against Germany and registered on

15 March 1996 under file No. 30470/96;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicants, born in 1928 and 1935, are German nationals and

resident at Syburg.  They are a married couple.

     The facts of the case, as submitted by the applicants, may be

summarised as follows.

     In November 1977 the applicants bought a moated castle at Syberg.

     In August 1978 the applicants filed an action against the Bergen

Municipality, claiming compensation for damages as well as the clearing

from mud and refilling of two ponds ('Gutzenweiher' and 'Schloßweiher')

with a view to starting pisciculture.  They submitted that various

highly poisonous agents were flowing from the municipal sewage

treatment plant into the watercourses feeding their ponds.

     In February 1980 the Ansbach Regional Court (Landgericht)

dismissed the action.  The Court found that the 'Gutzenweiher' had

silted up a long time ago and that the 'Schloßweiher', next to the

castle, was needed as a water reserve in case of fire and was

inappropriate for pisciculture due to the lack of maintenance by the

previous owners of the castle.

     In February 1982 the Nürnberg Court of Appeal (Oberlandesgericht)

dismissed the applicants' appeal (Berufung) to the extent that the

compensation claims were concerned and, amending the first instance

judgment, declared that the civil courts had no jurisdiction as far as

their further claims were concerned.  This part of the action was

transferred to the Ansbach Administrative Court (Verwaltungsgericht).

     On 17 September 1986 the Ansbach Administrative Court dismissed

the applicants' action.  The Court found that the applicants had no

claims regarding the 'Gutzenweiher' which had silted up some fifty

years ago.  Moreover, as regards the 'Schloßweiher', the applicants

themselves were responsible for maintenance under the relevant

provisions of the Bavarian Water Act (Wassergesetz).  The applicants'

submissions concerning the proper functioning of the municipal sewage

treatment plant were irrelevant to the issue of clearing the pond from

mud, but could only oblige the authorities to take general security

measures.  The Court dismissed the applicants' request to submit their

case to the European Court of Justice for a preliminary ruling.

     On 18 May 1993 the Bavarian Administrative Court of Appeal

(Verwaltungsgerichtshof) dismissed the applicants' appeal, which had

been extended to various further claims.  The extension was admitted

as far as it concerned requests for protective measures at the sewage

treatment plant, for removal of various agents having penetrated the

walls of the castle via the 'Schloßweiher', as well as for demolition

and reconstruction of their castle at another place.  The Court of

Appeal confirmed the findings of the Administrative Court that the

applicants had no claims under the Bavarian Water Act.  Moreover, the

municipal sewage treatment plant had been licensed in August 1978, as

amended in 1983.  In December 1977, the project had been published in

the local gazette, together with information as to the remedies under

the Water Act.  However, neither the applicants nor the previous owners

of the castle had availed themselves of these remedies, and the licence

was, therefore, a final (bestandskräftig) administrative decision.

There was nothing to show that the licence was null and void.

Moreover, and this had not been in dispute between the parties, the

conditions fixed in the said licence, in particular on the limits of

feeding permissible syphoning, had been respected.  Any complaints that

the sewage treatment plant was not at the latest state of engineering

would have to be raised in proceedings with the competent authorities

under the Water Act.

     On 18 February 1994 the Federal Administrative Court

(Bundesverwaltungsgericht) dismissed the applicants' request for leave

to appeal on points of law (Beschwerde über die Nichtzulassung der

Revision).

     The applicants thereupon lodged constitutional complaints

(Verfassungsbeschwerden) both with the Federal Constitutional Court

(Bundesverfassungsgericht) and the Bavarian Constitutional Court.  The

applicants complained that the respective court decisions violated

their rights to life and property and also disregarded legal provisions

emanating from the European Communities, and that the proceedings

concerned had been unfair.

     On 25 April 1994 the Federal Constitutional Court refused to

entertain their constitutional complaint.

     On 20 July 1995 the Bavarian Constitutional Court, in a detailed

decision, dismissed their constitutional complaint.

COMPLAINTS

1.   The applicants complain about the German court decisions

permitting the continued poisoning of the ponds and moats surrounding

their castle.  They submit that they cannot, therefore, use their

property for the envisaged professional purposes and that they run

health risks if they continue to live there.  They invoke Articles 8

and 14 of the Convention and Article 1 of Protocol No. 1.

2.   The applicants further complain under Article 6 about the alleged

unfairness of the proceedings concerned.  They submit in particular

that they were not duly heard and that the courts disregarded parts of

their submissions.

3.   The applicants also complain under Article 6 that the Bavarian

Constitutional Court did not hold a public hearing.

4.   The applicants finally complain about the length of the

proceedings at issue.

THE LAW

1.   The applicants complain about the German court decisions

permitting the continued poisoning of the ponds and moats surrounding

their castle.  They submit that they cannot, therefore, use their

property for the envisaged professional purposes and that they run

health risks if they continue to live there.  They invoke in particular

Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1

(P1-1).

     Article 8 (Art. 8) of the Convention provides as follows:

     "1.   Everyone has the right to respect for his private and

     family life, his home and his correspondence.

2.   There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law and

is necessary in a democratic society in the interests of national

security, public safety or the economic well-being of the country, for

the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others."

     Article 1 of Protocol No. 1 (P1-1) reads:

     "Every natural or legal person is entitled to the peaceful

     enjoyment of his possessions.  No one shall be deprived of his

     possessions except in the public interest and subject to the

     conditions provided for by law and by the general principles of

     international law.

     The preceding provisions shall not, however, in any way impair

     the right of a State to enforce such laws as it deems necessary

     to control the use of property in accordance with the general

     interest or to secure the payment of taxes or other contributions

     or penalties."

     The Commission recalls that severe environmental pollution may

affect individuals' well-being and prevent them from enjoying their

homes in such a way as to affect their private and family life

adversely.   Whether the question is analysed in terms of a positive

duty on the State - to take reasonable and appropriate measures to

secure the applicant's rights under paragraph 1 of Article 8 (Art. 8-1)

- or in terms of an "interference by a public authority" to be

justified in accordance with paragraph 2, the applicable principles are

broadly similar.  In both contexts regard must be had to the fair

balance that has to be struck between the competing interests of the

individual and of the community as a whole, and in any case the State

enjoys a certain margin of appreciation.  Furthermore, even in relation

to the positive obligations flowing from the first paragraph of Article

8 (Art. 8), in striking the required balance the aims mentioned in the

second paragraph may be of a certain relevance (cf. Eur. Court HR,

López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C,

pp. 54-55, para. 51).  Similar considerations may apply with regard to

the protection of property rights under Article 1 of Protocol No. 1

(P1-1).

a.   However, according to Article 26 (Art. 26) of the Convention, the

Commission may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken.

     As regards the applicants' complaints about the operation of the

communal sewage treatment plant, the Commission notes that this plant

was licensed in 1978, pursuant to the relevant provisions of the

Bavarian Water Act.  The project had been previously published,

together with information on the legal remedies.  The applicants failed

to avail themselves of these legal remedies.  The Commission considers

that the applicants, having bought the castle in November 1977, could

not reasonably have been unaware of important local building projects,

as published in the local gazette (cf., mutatis mutandis, Eur. Court

HR, Allan Jacobsson v. Sweden judgment of 25 October 1985, Series A

no. 163, p. 18, paras. 59-61).  In this context, the proceedings for

compensation and clearance of the ponds instituted by the applicants

in 1978 cannot be regarded as an effective remedy, for the purposes of

Article 26 (Art. 26).  Rather, the competent courts found that the

licence of 1978, as amended in 1983, was a final administrative

decision, i.e. no longer challengeable before the administrative

courts.  Consequently, the applicants failed to exhaust the remedies

available to them under German law with regard to the operation of the

sewage treatment plant, as licensed in 1978.

     To the extent that the applicants are to be understood as

complaining that the sewage treatment plant was not at the latest state

of engineering, they failed to institute proceedings with the competent

authorities under the Water Act.

     The Commission further observes that, as stated in the reasons

of the decision of the Bavarian Administrative Court of Appeal, the

applicants had not disputed that the sewage treatment plant operated

in full compliance with the conditions fixed in the licence.

     These aspects of the application are, therefore, inadmissible for

non-compliance with the conditions under Article 26 (Art. 26), and must

be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

b.   The remainder of the applicants' complaints under this head

relates to the refusal by the Bergen Municipality, as confirmed by the

German administrative courts, to clear the 'Schloßweiher' and the

'Gunzenweiher' from mud and to refill them.

     According to these decisions, one of the ponds had no longer

existed when the applicants acquired the estate.  Moreover, as far as

the other pond was concerned, the applicants themselves were, under the

relevant legislation, responsible for any maintenance work, whereas the

operation of the sewage treatment plant did not constitute an unlawful

interference with their rights.  In this respect, the German courts

referred to the binding licence granted for the operation of the plant

in question.  However, for the reasons stated above, the Commission is

prevented from  examining whether the granting of the licence as such

amounted to a breach of the applicants' rights under the Convention or

the Protocols thereto.

     In these circumstances, the impugned decisions do not disclose

any appearance of a breach of the applicants' rights to respect for

their private and family life and their home, and their right to the

peaceful enjoyment of their possessions.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.   The applicants further complain under Article 6 (Art. 6) about

the alleged unfairness of the proceedings concerned.  They submit in

particular that they were not duly heard and that the courts

disregarded parts of their submissions.

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

alia that "[i]n the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing within a

reasonable time by [a] ... tribunal".

a.   Insofar as the applicants' complaints relate to the proceedings

concerning the grant of the licence in 1978, the Commission, referring

to its above findings, considers that the applicants failed to comply

with the conditions under Article 26 (Art. 26) of the Convention, and

that this part of the application must likewise be rejected under

Article 27 para. 3 (Art. 27-3).

b.   As regards the civil court proceedings before the Ansbach

Regional Court and the Nürnberg Court of Appeal as well the

administrative court proceedings before the Ansbach Administrative

Court and the Bavarian Court of Appeal, the Commission finds no

indication that the applicants could not duly present their arguments

or that their submissions were disregarded by the courts.  The

Commission notes in particular that the Bavarian Court of Appeal

largely admitted an extension of the applicants' claims in the course

of the appeal proceedings.  The respective courts based their decisions

on a comprehensive reasoning and there is nothing to show that they

unduly disregarded any relevant procedural request.  In this context,

the Commission recalls that Article 6 para. 1 (Art. 6-1) cannot be

understood to require a detailed answer to every argument that a

litigant may bring before the courts (Eur. Court HR, Ruiz Torija and

Hiro Balani v. Spain judgments of 9 December 1994, Series A nos. 303

A/B, p. 12, para. 29 and pp. 29-30, para. 27, respectively).

     Considering all circumstances, there is no appearance of a breach

of the applicants' right to a fair hearing.

     It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 26 par. 2 (Art. 26-2) of the

Convention.

3.   The applicants also complain under Article 6 (Art. 6) that the

Bavarian Constitutional Court did not hold a public hearing.

     The Commission observes that the applicants do not claim that

they requested the Constitutional Court to hold a public hearing in

their case.  However, assuming that the applicants did not waive their

right to such a hearing, the Commission recalls that, provided a public

hearing has been held at first instance, the absence of such hearing

before a second or third instance may be justified by the special

features of the proceedings at issue.  Thus, leave-to-appeal

proceedings and proceedings involving only questions of law, as opposed

to questions of fact, may comply with the requirements of Article 6

(Art. 6), although the appellant was not given an opportunity of being

heard in person by the appeal or cassation court.  Even where courts

of appeal have jurisdiction to review cases both as to facts and as to

the law, Article 6 (Art. 6) does not always require a right to a public

hearing irrespective of the nature of the issue to be decided (cf.,

Eur. Court HR, Fejde v. Sweden judgment of 29 October 1991, Series A

no. 212-C, pp. 68-69, para. 31).

     The Commission notes that the Bavarian Constitutional Court had

to decide upon a constitutional complaint, alleging the breach of the

applicants' rights under the Bavarian Constitution.  These proceedings

did not involve any question which could not be adequately resolved on

the basis of the case-file.  Considering the entirety of the

proceedings before the German courts and also the nature of issues

relevant in the applicants' case, the Bavarian Constitutional Court

could, as a matter of fair hearing, properly decide on their

constitutional complaints without having held a public hearing.

     In these circumstances, the absence of a public hearing before

the Bavarian Constitutional Court does not disclose any indication of

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

     It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4.   The applicants finally complain about the length of the

proceedings at issue.

a.   The applicants first lodged their action with the Ansbach

Regional Court in August 1978.  Part of their action was referred to

the Ansbach Administrative Court in 1982.  Their case was pending

before administrative courts until February 1994.

     It is true that the applicants subsequently lodged constitutional

complaints both with the Bavarian Constitutional Court and the Federal

Constitutional Court.  However, they failed to raise, in their

complaint submissions with both Constitutional Courts, the issue of the

allegedly excessive length of the preceding proceedings (No. 10785/84,

Dec. 18.7.86, D.R. 48, p. 102).

     In this respect, the Commission recalls that the application of

the rule of exhaustion of domestic remedies must make due allowance for

the fact that it is being applied in the context of machinery for the

protection of human rights that the Contracting Parties have agreed to

set up.  Accordingly, Article 26 (Art. 26) must be applied with some

degree of flexibility and without excessive formalism. However, it does

not require merely that applications should be made to the appropriate

domestic courts and that use should be made of remedies designed to

challenge decisions already given.  It normally requires also that the

complaints intended to be made subsequently at Strasbourg should have

been made to those same courts, at least in substance and in compliance

with the formal requirements and time-limits laid down in domestic law

(cf. Eur. Court HR, Sadik Ahmet v. Greece judgment of 15 November 1996,

Reports 1996-V, No. 20, para. 30).

     It follows that the applicants' complaint about the length of the

proceedings before the German civil and administrative courts must be

rejected under Article 27 para. 3, in conjunction with Article 26

(Art. 27-3+26), of the Convention.

b.   The Commission notes that in the ensuing proceedings, the Federal

Constitutional Court rejected their constitutional complaint within two

months.  In parallel proceedings, the Bavarian Constitutional Court

took a decision within about seventeen months.  The applicants do not

particularly address the question of length at that stage of the

proceedings.

     The Commission finds that no delay can be imputed to the Federal

Constitutional Court.  Furthermore, considering the particular features

of proceedings before a constitutional court and given the fact that

it examined the applicants' complaints in detail, the length of the

proceedings before the Bavarian Constitutional Court did not exceed a

"reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1).

     Consequently, there is no appearance of a breach of Article 6

(Art. 6) in this respect.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2).

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber