Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17820/91

by F.W.P.

against Germany

The European Commission of Human Rights sitting in private on

10 January 1995, the following members being present:

MM. H. DANELIUS, Acting President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

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

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

E. KONSTANTINOV

G. RESS

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 15 August 1990 by

F. W. P. against Germany and registered on 19 February 1991 under file

No. 17820/91;

Having regard to :

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

the Commission;

- the observations submitted by the respondent Government on

16 December 1991 and the observations in reply submitted by the

applicant on 18 March 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1933 and living in

Hanover.

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

be summarised as follows:

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.

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.

A new Allotment Garden Act (Bundeskleingartengesetz) entered into

force on 28 February 1983 and the civil proceedings were resumed at the

applicant's request on 17 March 1983.

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.

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 surety (Kaution) of

2,000,000 DM.

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

question whether or not certain provisions of the new Allotment Garden

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

by the Regional Court.

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

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.

On 26 June 1987 the case was submitted to the Federal

Constitutional Court.

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 reunification, a decision on the

constitutionality of the Allotment Garden Act could not be expected

before 1991. On 23 September 1992 the Federal Constitutional Court

gave judgment in the matter finding that Section 5 para. 1, first

sentence, of the Act in question was not compatible with Article 14

para. 1, first sentence, of the Constitution (Grundgesetz).

Subsequently the Court of Appeal resumed the proceedings and has

not yet given a judgment.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 August 1990 and registered

on 19 February 1991.

On 2 July 1991 the Commission decided to communicate the

application to the respondent Government. It also decided not to refer

the case to a Chamber, and to invite the parties to submit written

observations on admissibility and merits.

The Government's observations were submitted by letter dated

16 December 1991 and the applicant's reply by letter of 18 March 1992.

On 16 May 1992 the Commission decided to adjourn the proceedings

pending the outcome of the Ruiz Mateos case before the European Court

of Human Rights. Judgment in that case was given on 23 June 1993

(Eur. Court H.R., Ruiz Mateos judgment of 23 June 1993, Series A

no. 262).

On 10 January 1994 the Commission decided to invite the parties

to submit further written observations on admissibility and merits, in

the light of the Ruiz Mateos judgment. The Government submitted

further observations on 21 February 1994 and the applicant replied on

18 March 1994.

COMPLAINTS

Invoking Article 6 para. 1 of the Convention, the applicant

complains of the length of the proceedings.

THE LAW

The applicant complains of the length of civil proceedings which

he instituted on 23 May 1980 and which are still pending on appeal.

He 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."

It is uncontested that the civil proceedings in the present case

concern the determination of a civil right.

The proceedings were prolonged by the necessity to have the

compatibility of the applicable legislative provisions with

constitutional law determined by the Federal Constitutional Court. The

period in question, for the purpose of the Commission's examination

under Article 6 (Art. 6) of the Convention, therefore amounts already

to more than fourteen years (c.f. Eur. Court H.R., Ruiz Mateos judgment

of 23 June 1993, Series A no. 262, pp. 19-20, paras. 33-37).

After conducting a preliminary examination of the facts and the

submissions of the parties, the Commission notes that according to the

Federal Government's submissions the Federal Constitutional Court had

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

end of 1990 while in consequence of German reunification it had become

necessary to give precedence to more urgent cases.

The Commission finds, however, that the complaint on 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 THE APPLICATION ADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. Krüger) (H. DANELIUS)

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F.W.P. v. GERMANY

F.W.P. v. GERMANY

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