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M.P. v. GERMANY

Doc ref: 20950/92 • ECHR ID: 001-2202

Document date: June 26, 1995

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Cited paragraphs: 0
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M.P. v. GERMANY

Doc ref: 20950/92 • ECHR ID: 001-2202

Document date: June 26, 1995

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 20950/92

by M.P

against Germany

The European Commission of Human Rights sitting in private on

26 June 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

S. TRECHSEL

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

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 June 1992 by

M.P. against Germany and registered on 16 November 1992 under file No.

20950/92;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 28 June 1994 to communicate the

application;

- the observations submitted by the respondent Government on

29 September 1994 and the observations in reply submitted by the

applicant on 15 November 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen born in 1937 and living in

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

Munich.

The facts of the present case, as submitted by the parties, may

be summarised as follows:

1. 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.

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.

On 19 April 1978 the action was dismissed by the Munich I

Regional Court (Landgericht).

The applicant lodged an appeal.

On 6 November 1978 the Munich Court of Appeal (Oberlandesgericht)

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 subsequently.

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

because, according to information received from the Federal Ministry

for Regional Planning, Building and Urban Development, amendments to

the law on allotment gardens were in preparation.

On 28 February 1983 a new Federal Allotment Garden Act entered

into force.

The civil proceedings were consequently resumed on 14 June 1983.

On 12 December 1983 the applicant's appeal was dismissed.

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

law (Revision).

On 13 December 1984 the Federal Court (Bundesgerichtshof)

admitted the appeal.

On 24 May 1985 the Federal Court stayed the proceedings in order

to obtain a decision of the Federal Constitutional Court on the

question of the compatibility of certain relevant provisions of the

Allotment Garden Act with the constitutional right to protection of

property.

Similar questions were submitted to the Federal Constitutional

Court by the Hamm Court of Appeal on 26 June 1987 and 6 March 1982.

On 23 September 1992 the Federal Constitutional Court gave its

decision relating to the Allotment Garden Act.

Thereupon the civil proceedings were continued and on

23 April 1993 the applicant's appeal on points of law was dismissed by

the Federal Court.

COMPLAINTS

The applicant complains under Article 6 of the Convention about

the length of the proceedings before the Federal Constitutional Court

relating to her civil action.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 June 1992 and registered on

16 November 1992.

By partial decision of 28 June 1994 the Commission decided to

communicate the complaint about the length of the first set of civil

proceedings to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure. The remainder of the

application was rejected as inadmissible.

The Government's written observations were submitted on

29 September 1994. The applicant replied on 15 November 1994.

THE LAW

The applicant complains of the length of proceedings before the

Federal Constitutional Court which did not give a decision on the

referral made by the Federal Court in seven years and four months. She

invokes Article 6 para. 1 (Art. 6-1) of the Convention, the relevant

part of which reads as follows:

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

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The Government submitted that the Federal Constitutional Court

had initially planned to give a decision in the present matter towards

the end of 1990, but, because of German reunification, it was necessary

to give precedence to more urgent cases. The applicant replied that the

delay in her case was nevertheless unjustified and created a

confiscatory effect.

After conducting a preliminary examination of the facts and

having regard to the submissions of the parties, the Commission finds

that the applicant's complaint about the length of the proceedings

raises complex factual and legal issues which require an examination

of the merits.

The Commission concludes, therefore, that the application is not

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

(Art. 27-2) of the Convention. No other grounds for declaring the

application inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, the complaint on the length of the

proceedings, without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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