THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66491/01 by Jürgen GRÄSSER against Germany

The European Court of Human Rights (Third Section) , sitting on 6 May 2003 as a Chamber composed of

Mr I. Cabral Barreto , President , Mr G. Ress , Mr P. Kūris , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mr K. Traja , judges , and Mr M. Villiger , Deputy Section Registrar

Having regard to the above application lodged on 2 February 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jürgen Grässer, is a German national, who was born in 1940 and lives in Pforzheim, Germany. He is represented before the Court by Mr. B. Sauber, a lawyer practising in Saarbrücken, Germany.

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

In 1971, the applicant and a company engaged in negotiations with the municipality of Saarbrücken regarding the costs for the establishment of a local public infrastructure ( Erschliessung ) for a piece of land. In the course of these negotiations, the applicant and the other party undertook to pay 2,535,000 DEM (approximately 1,296,000 Euro) of these costs. The applicant also undertook to construct a shopping centre within two years following the grant of a building permit.

On 1 April 1974, the applicant applied for such a permit with the competent municipal authorities and offered to request a bank security to cover the costs for the provision of local public infrastructure. He also suggested that a contract on this point be signed by him and the municipality.

In August 1974, following municipal elections, the price for providing a local public infrastructure was raised to 4,500,000 DEM (approximately 2,300,813 Euro) and the applicant was requested to submit a bank security. Upon his refusal to do this, the municipality denied its consent to his request for a building permit.

On 23 August 1974, the applicant brought an official liability action for compensation before the Saarbrücken Regional Court against the municipality of Saarbrücken . He complained that the municipality’s sudden decision to raise the sum for the provision of local public infrastructure was a result of informal negotiations between different local political parties before the municipal elections and constituted a voluntary breach of the principle of continuity in administrative actions.

On 24 February 1975, the local building authorities refused to grant a building permit to the applicant. This decision was later confirmed by the competent administrative courts.

On 21 March 1975 (served on 4 June 1975), the Regional Court dismissed the applicant’s action. According to the Regional Court, nothing suggested that the municipality of Saarbrücken had acted in breach of its obligations as a public organ.

On 26 June 1975, the applicant lodged an appeal against this decision with the Saarland Court of Appeal (Fourth Senate).

In the fall of 1976, the property concerned was sold by way of forced auction proceedings.

On 3 February 1978, the Court of Appeal (Fourth Senate) rejected the applicant’s appeal.

On 7 February 1980, following the applicant’s appeal on points of law, the Federal Court of Justice revoked this decision  and remitted the matter to the Court of Appeal (Fourth Senate). It requested the Court of Appeal to examine whether by abruptly changing its attitude in the course of the negotiations, the municipality had violated a relationship of trust with regard to the applicant.

On 23 October 1981, the Court of Appeal (Fourth Senate) again rejected the applicant’s appeal, finding that nothing suggested that the municipality had acted in breach of its obligation to behave in a consistent manner.

On 14 October 1982, the Federal Court of Justice rejected a part of the applicant’s renewed appeal on points of law and declared the remainder admissible.

On 5 May 1983, the Federal Court of Justice revoked this part of the Court of Appeal’s decision on legal grounds and remitted it to the Seventh Senate of the Court of Appeal.

On 10 July 1984, the Court of Appeal (Seventh Senate) amended the decision of 21 March 1975, finding that the applicant was entitled to compensation. It did not decide on an exact amount or on the costs of the proceedings. The Court of Appeal found that the municipality of Saarbrücken had suddenly and without prior warning terminated negotiations regarding the provision of local public infrastructure, thus acting in breach of its obligations as a public organ.

On 11 July 1985, the Federal Court of Justice refused to entertain the appeal on points of law of the municipality of Saarbrücken .

On 19 December 1985, the Federal Constitutional Court refused to entertain the municipality’s constitutional complaint.

On 8 July 1986, the Court of Appeal ordered the municipality of Saarbrücken to pay 5,798,142 DEM (approximately 2.964.543 Euro) to the applicant and rejected the remainder of his claim.

On 22 June 1989, following both parties’ appeals on points of law, the Federal Court of Justice revoked the Court of Appeal’s decision as far as the amount of damages was concerned and remitted the matter to the Court of Appeal in order to obtain a new decision based on new calculations.

On 9 January 1995, the Court of Appeal ordered that an expert opinion be prepared on the amount of damages suffered by the applicant.

On 12 January 1999, the Court of Appeal ordered that a new expert report be prepared on the tax-related aspects of the damages requested by the applicant.

On 20 July 2000, following the applicant’s constitutional complaint regarding the length of the proceedings, the Federal Constitutional Court, bearing in mind the complexity of the case, found that the length of the court proceedings was excessive and violated the rule of law as guaranteed by the German Basic Law. Although it noted that there had never been a total inactivity in the proceedings, the Federal Constitutional Court observed that nothing suggested that the courts concerned had undertaken to expedite the proceedings, which would have been necessary considering that the applicant’s financial existence was at stake. As the proceedings had already lasted for fifteen years when the case was last remitted to the Court of Appeal, the matter should have received a priority treatment. The Federal Constitutional Court required the Court of Appeal to undertake effective measures in order to terminate the proceedings as soon as possible

Two motions of bias submitted by the applicant in August and September 2000 remained unsuccessful, as two different Senates of the Court of Appeal found nothing to suggest that the judges concerned were biased.

On 20 November 2001, the Saarland Court of Appeal (Seventh Senate) rejected the applicant’s claim for compensation. It found that nothing suggested that the applicant would have been in a financial position to realise his building project, regardless of the municipality’s behaviour. The municipality’s actions thus had not caused any financial losses to the applicant.

The applicant’s appeal on points of law to the Federal Court of Justice is currently pending. On 16 January 2003, the Federal Court of Justice sent the applicant a letter informing him that his case had not yet been scheduled.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of the proceedings before the German courts. He further alleges that the proceedings were unfair and that some of the judges involved were biased, in particular that the Court of Appeal acted in an improper manner.

THE LAW

1. The applicant complains that the proceedings before the German civil courts were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention.

Article 6 § 1, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations...everyone is entitled to a fair ... hearing within a reasonable time...”

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

2. As regards the applicant’s complaint about the alleged unfairness of the proceedings, the Court notes that the main litigation is still pending before the Federal Court of Justice. The Court cannot on that account speculate on the outcome of the proceedings, less so on the question whether the proceedings will continue to be conducted in a manner which respects the requirements of a fair procedure. It confines itself to noting that the issue concerning the alleged partiality of some of the judges involved was argued before the German courts.

The Court notes that this point and the remainder of the applicant’s complaints must be seen in the context of the fairness of the proceedings as a whole. The Court cannot, at this stage, pronounce on this issue from the standpoint of Article 6 § 1 of the Convention. It thus concludes that this part of the complaint is premature and as such manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the civil court proceedings;

Declares the remainder of the application inadmissible.

Mark Villiger Ireneu Cabral Barreto              Section Registrar President