FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40009/04 by Hans-Georg VON KOE STER and Hans- Konrad VON KOESTER against Germany

The European Court of Human Rights ( Fifth Section), sitting on 16 September 2008 as a Chamber composed of:

Peer Lorenzen , President, Rait Maruste , Karel Jungwiert , Renate Jaeger, Mark Villiger , Isabelle Berro-Lefèvre , Zdravka Kalaydjieva , judges, and Claudia Westerdiek , Section Registra r ,

Having regard to the above application lodged 8 November 2004 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Hans-Georg von Koester and Hans- Konrad von Koester , are German nationals who were born in 1922 and 1957 respectively and live in Wiesbaden . The first applicant is represented before the Court by the second applicant, who is a lawyer practising in Wiesbaden .

A. The circumstances of the case

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

1. Background to the case

The first applicant was the owner of a plot of land with a landmarked house at the corner of Rheinstrasse , a main traffic artery with six lanes, and a square known as “ Luisenplatz ” in Wiesbaden . In 1983/84 th at square was reshaped and an underground car park was built close to the first applicant ’ s property. Between 1988 and 1993 several events and demonstrations took place on the square which caused noise . Furthermore several new road traffic regulati ons in Wiesbaden city resulted in an increased volume of traffic next to the first applicant ’ s property. He therefore instituted several different sets of proceedings against the Wiesbaden local authorities.

In 1997 the first applicant transferred the property to his son, the second applicant. The first applicant was granted a right of enjoyment over his son ’ s property ( Nießbrauch ). The second applicant represented the first applicant throughout the proceedings before the German courts.

2. Proceedings relating to noise remediation measures

(a) Proceedings until severance

Between 1986 and 21 December 1990 the first applicant requested the Wiesbaden local authorities on several occasions to reimburse him the expen s es ( notwendige Aufwendungen ) incurred by him for the noise remediation measures taken to protect him against the noise caused by the construction works and, thereafter, the events and demonstrations carried out on Luisenplatz and by the increased volume of traffic. Furthermore he made official liability claims concerning his noise remediation measures and claimed damages for the depreciation of his property.

On 2 April 1991 the first applicant lodged a complaint for failure to act ( Untätigkeitsklage ) with the Wiesbaden Administrative Court pursuant to Section 75 of the Code of Administrative Court Procedures (see “Relevant domestic law” below) because the local authorities had not yet decided upon his request of 21 December 1990.

On 4 June 1991 the Wiesbaden Administrative Court declared his action inadmissible.

On 14 August 1991 the first applicant appealed to the Hessen Administrative Court of Appeal.

On 24 February 1998 the Administrative Court of Appeal severed the official liability claims and the claim for damages in relation to the depreciation of the property and gave them a new file number (14 UE 794/98).

(b) Reimbursement of expenses incurred for noise protection measures (14 UE 1897/91)

By a judgment of 24 February 1998 the Administrative Court of Appeal quashed the judgment of the Administrative Court of 4 June 1991 as to the reimbursement of the expenses incurred for noise protection measures and referred the case to the Administrative Court for fresh consideration.

On 11 December 2001 the Wiesbaden Administrative Court allowed the second applicant to participate in the proceedings as an interested third party ( Beigeladener ).

By a judgment of 27 February 2002 the Administrative Court partly found for the applicants.

On 21 October 2002 the Hessen Administrative Court of Appeal granted both applicants and the Wiesbaden local authorities leave to appeal.

On 25 November 2002 the applicants submitted their statement of grounds of appeal .

On 4 December 2002 the applicants received the defendant ’ s statement of grounds of appeal together with the Administrative Court of Appeal ’ s order to submit his reply to that statement by 6 January 2003.

On 20 December 2002 the applicants requested the Administrative Court of Appeal for an extension of the time set by the same court .

On 6 January 2003 the court extended the time-limit for further submissions of the applicants until 27 January 2003 and declared that no further extensions could be granted.

On 26 March 2003, after having held an oral hearing on 18 March 2003, the Hessen Administrative Court of Appeal quashed the Administrative Court ’ s judgment and dismissed the action.

As to the noise caused by the increased traffic, the court found that the applicants were not entitled to compensation pursuant to section 42 of the Federal E mmission Control Act ( Bundes-Immissionsschutzgesetz ) as the noise emissions were not caused by the construction of a public street as required by that provision.

In so far as the applicants complained about the noise emanating from the car park and the events and demonstrations carried out on Luisenplatz , the court held that the applicants were not entitled to reimbursement of their expenses because they ha d failed, before requesting the reimbursement of their expenses for noise remediation measures, to first seek the annulment of the construction permits and the permi ts for the events which took place on Luisenplatz .

On 30 May 2003 the applicants requested leave to appeal from the Federal Administrative Court .

On 2 July 2003 the applicants submitted their statement of grounds for their leave to appeal request.

On 30 July 2003 the second applicant made further submissions in respect of which he requested the reinstatement of the proceedings as he had been ill and thus prevented from making his further submissions within the time-limit to lodge the statements of grounds of appeal . In this connection he submitted a medical certificate dated 3 July 2003 attesting that he would be unfit for work until 4 July 2003.

On 3 September 2003 the Federal Administrative Court refused to grant the applicants leave to appeal on points of law. In so far as they ha d lodged their submissions within the time-limit, the court confirmed the findings of the Administrative Court of Appeal. In respect of their submissions of 30 July 2003 the court rejected the request for reinstatement as the second applicant had failed to lodge it within two weeks after he had been fit for work again ( Wiedereinsetzungsfrist - see “Relevant domestic law” below). As of 5 July 2003 he was no longer ill. Therefore he could have lodged his submissions by 18 July 2003 but failed to do so.

On 27 November 2003 the Federal Administrative Court refused to reconsider its decision of 3 September 2004.

On 3 May 2004 the Federal Constitutional Court refused to admit the applicants ’ constitutional complaint without giving any reasons.

On 10 May 2004 that decision was served on the applicants.

(c) Official liability proceedings (7 O 58/98)

On 26 March 1998 the Hessen Administrative Court of Appeal found that the ordinary courts had been competent to decide on the compensation and official liability claims and referred them to the Wiesbaden Regional Court for adjudication.

Those proceedings were subsequently conducted by the Wiesbaden Regional Court under file number 7 O 58/98.

On 16 January 2006 the Regional Court held an oral hearing during which it made a friendly settlement proposal, which the defendant rejected on 3 February 2006.

On 18 April 2007 the court requested the parties to give their consent to a purely written procedure which the parties gave on 25 October 2007.

On 31 October 2007 the Regional Court authorised both parties to make further written submissions by 14 December 2007.

On 20 February 2008 the Regional Court again requested the parties to give their consent to the written procedure as their consent of 25 October 2007 had only been valid until 25 January 2008.

These proceedings are still pending.

3. Proceedings relating to various traffic regulations

(a) Preliminary road closures (nos. 7 E 436/93(1) and 7 E 1208/99)

On 13 January 1992 the Wiesbaden local authorities ordered the preliminary closure of two streets, the Friedrichstraße (order no. 4/92) and the Luisenstraße (order no. 5/92).

On 20 February 1992 the first applicant lodged administrative appeals against both orders, and on 5 April 1993 he repeated his appeals.

On 28 May 1993 the first applicant lodged a complaint for failure to act with the Wiesbaden Administrative Court as the local authorities ha d not yet decided upon his administrative appeals of 20 February 1992 and 5 April 1993.

On an unspecified date the second applicant joined the proceedings as an interested third party.

On 2 September 1999 the Wiesbaden Administrative Court severed the proceedings concerning the preliminary closure of Luisenstraße and pursued them under file number 7 E 1208/99.

On 24 January 2000 it assigned the proceedings relating to the closure of Friedrichstraße (file no. 7 E 436/93(1)) to a single judge.

On 22 February 2000 the first applicant challenged several judges of the Administrative Court on the basis of them being bias ed ; on 25 February 2003 the Administrative Court declared his motions inadmissible.

On 13 March 2003 the Administrative Court assigned the proceedings relating to the closure of Luisenstraße (file no. 7 E 1208/99) to a single judge.

By judgments of 23 April 2003 the Administrative Court declared both actions inadmissible as the applicants lacked an interest in securing legal protection ( Rechtsschutzbedürfnis ). Thus, the proceedings had been disposed of because in the meantime both streets had been closed on a permanent basis and because this final closure ha d been the object of a further set of proceedings (see no. 7 E 320/99 below).

On 4 June 2003 both applicants requested leave to appeal from the Hessen Administrative Court of Appeal, and on 7 July 2003 they submitted their statement of claim.

On 2 February 2004 the Hessen Administrative Court of Appeal refused to grant the applicants leave to appeal.

(b) Final road closures and installation of a ticket selling machine (no. 7 E 320/99)

On 20 July 1994 the Wiesbaden local authorities ordered the final closure of parts of Luisenstrasse and of Friedrichstrasse to motor traffic.

On 12 September 1994 both applicants lodged an administrative appeal against that decision arguing that the road closures resulted in an increased traffic close to their property which caused unbearable noise.

On 22 April 1998 the Wiesbaden local authorities ordered the installation of a ticket machine ( Parkautomat ) in Luisenstrasse .

On 8 March 1999 the Darmstadt regional authorities rejected the applicants ’ administrative appeal against the local authorities ’ decision of 22 April 1998.

On 12 April 1999 the applicants lodged an action with the Wiesbaden Administrative Court against the decisions of 22 April 1998 and 8 March 1999. Furthermore they lodged a complaint for failure to act because the local authorities had not yet decided up on their administrative appeal against the local authorities ’ decision of 20 July 1994.

On 13 March 2003 the Wiesbaden Administrative Court assigned the proceedings to a single judge.

On 23 April 2003 the Wiesbaden Administrative Court dismissed the applicants ’ action. It found that the road closures had been necessary to reduce the traffic in the historical city of Wiesbaden by a third. The traffic on Rheinstrasse however increased only by a maxim um of 16% in the rush-hour. Furthermore the applicants ’ property had always been situated on a main traffic artery and had hence been exposed to dense traffic long before the first applicant instituted his proceedings in 1991. Therefore their property rights had not been violated.

On 4 June 2003 the applicants requested leave to appeal from the Hessen Administrative Court of Appeal, and on 7 July 2003 they submitted their statement of claim.

On 2 February 2004 the Hessen Administrative Court of Appeal refused to grant the applicants leave to appeal. It rejected their argument that they had no possibility of protect ing their property against noise emissions caused by traffic , referring to the possibility to lodge an action claiming official liability with the ordinary courts which would decide on possible claims for noise remediation in cases of excessive nuisances caused by road traffic. It noted that the applicants had in fact availed themselves of that possibility (see proceedings no. 7 O 58/98 above).

(c) Conversion of two streets into a pedestrian zone (no. 7 E 710/98)

On 7 September 1994 the Wiesbaden local authorities converted parts of Luisenstrasse and of Friedrichsstrasse into a pedestrian area ( Teileinziehungsverfügungen ).

On 12 September 1994 the first applicant lodged an administrative appeal against that decision.

On 13 June 1998 the first applicant lodged a complaint for failure to act as no decision had been taken on his administrative appeal of 12 September 1994.

On an unspecified date the second applicant joined the proceedings as an interested third party.

On 13 March 2003 the Wiesbaden Administrative Court assigned the proceedings to a single judge.

On 23 April 2003 the Administrative Court dismissed the action.

On 4 June 2003 the applicants requested leave to appeal from the Hessen Administrative Court of Appeal, and on 7 July 2003 they submitted their statement of claim.

On 30 January 2004 the Hessen Administrative Court of Appeal refused to grant the applicants leave to appeal.

(d) Proceedings before the Hessen Constitutional Court

On 5 March 2004 the applicants lodged a constitutional complaint against the administrative courts ’ decisions rendered in the proceedings nos. 7 E 436/93(1), 7 E 1208/99, 7 E 320/99, 7 E 710/98 with the Hessen Constitutional Court. Furthermore they accused J udge G. of that court of being bias ed as he had acted as the judge in other proceedings involving the applicants at the Wiesbaden Administrative Court .

On 11 August 2004 the Hessen Constitutional Court dismissed their objections against J udge G. as being unfounded. The previous proceedings in which Judge G. had been involved did not concern the proceedings relating to the applicants ’ constitutional complaint but proceedings relating to several local taxes and hence to a different subject matter.

On 12 May 2005 the Hessen Constitutional Court refused to admit the applicants ’ constitutional complaint without giving any reasons.

On 23 May 2005 that decision was served on the applicants.

B. Relevant domestic law and practice

1. Provisions relating to the administrative court procedure

Pursuant to Section 60 § 2 of the Code of Administrative Procedure as in force at the material time the application for reinstatement of the proceedings must be made within two weeks from the moment at which the party is no longer unable to request the reinstatement of the proceedings ( Wiedereinsetzungsfrist ).

Section 75 of the Code of Administrative Court Procedures provides inter alia that an action can be lodged with the Administrative Court if the administrative authorities fail without sufficient justification to decide upon an administrative appeal or an application for the performance of an administrative act within a reasonable time-limit. The time-limit of three months is considered as reasonable.

2. Remedies against noise emissions

Section 42 in conjunction with section 41 of the Federal E mmission Control Act ( Bundes-Immissionsschutzgesetz ) provides inter alia that the state or a public body is liable to pay adequate compensation to an individual for excessive noise nuisances caused by the construction of a public street.

Under public law, property owners have the possibility to challenge the planning permission of neighbouring buildings. During these proceedings the planning authorities examine, among other elements, the impact of noise emissions on the neighbourhood.

Pursuant to section 1004 of the Civil Code property owners may apply for a cease-and-desist-order to counter interferences with their property rights.

According to Article 34 of the Basic Law, taken in conjunction with Article 839 of the Civil Code, the state or a public body is liable to pay compensation to an individual for any damage arising from a n intentional or negligent breach of official dut ies committed by its officials. In accordance with Article 34, third sentence, of the Basic Law the civil courts have jurisd iction to adjudicate official liability claims .

According to customary law, property owners may be granted compensation for depreciation of their property caused by excessive noise if there was an unlawful interference by a public authority with the owners ’ property rights ( Anspruch aus enteignungsgleichem Eingriff ).

COMPLAINTS

The applicants complain under Articles 6 and 13 about the length of the proceedings. They also allege that the conduct of the administrative courts and the delays in the proceedings rendered the latter ineffective.

In the proceedings relating to the reimbursement of expenses incurred for noise protection measures, the applicants complain under Article 6 that the short time-limits set by the Hessen Administrative Court of Appeal to submit their reply to the defendant ’ s statement of grounds of appeal infringed the principle of equality of arms.

Relying on Article 6, they further complain that the rejection by the Federal Administrative Court of their request for reinstatement of the proceedings was disproportionate as the court failed to consider the second applicant ’ s illness.

Invoking Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 they complain about the noise emissions caused by the construction works carried out on Luisenplatz and by the increased traffic volume. They argue that they had no right to have these nuisances examined by the administrative authorities and the courts. Therefore they had no effective remedy to protect their property rights.

The applicants further allege that the participation of J udge G. in the proceedings before the Hessen Constitutional Court violated their right to an impartial tribunal as guaranteed by Article 6 of the Convention.

The applicants further complain under Articles 6 and 13 that the Federal Constitutional Court and the Hessen Constitutional Court rejected their constitutional complaints without giving any reasons.

THE LAW

1. The applicants complained under Articles 6 § 1 and 13 of the Convention about the excessive length of the proceedings.

The Court, which is the master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy , judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), decided to examine the question as to whether the proceedings had been taken place within a reasonable time under Article 6 of the Convention alone, which, in so far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Court finds that it cannot, on the basis of the case file, determine the admissibility of the complaint. It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

2. As regards the applicants ’ remaining complaints, in the light of all the material in its possession the Court considers that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that these complaints must be rejected under Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

For these reasons, the Court unanimously

Decides to adjourn t he examination of the applicant ’ s complaints concerning the length of the proceedings in respect of the main proceedings ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President