FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3237/06 by Dieter STEPHAN and RÖHRIG against Germany

The European Court of Human Rights (Fifth Section), sitting on 12 April 2011 as a Committee composed of:

Boštjan M. Zupančič , President, Ganna Yudkivska , Angelika Nußberger , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 13 January 2006,

Having regard to the partial decision of 29 September 2009 ,

Having regard to the comments submitted by the German Government and the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Dieter Stephan and Mrs Beate Röhrig , are German nationals who were born in 1951 and 1952 respectively and live in Rösrath .

They were represented before the Court by Mr R. Heindl , a lawyer practising in Overath . The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling -Vogel, Ministerialdirigentin , of the Federal Ministry of Justice.

A. The circumstances of the case

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

1. Background to the case and first constitutional complaint

The applicants are the owners of a house and a flat in Rösrath-Forsbach , which is situated a few kilometres northeast of the Köln Bonn Airport .

As of 1993, on account of complaints from people living in another community close to the airport, the Commission responsible for consulting the Federal Aviation Office with regard to noise pollution ( Fluglärmkommission des Luftverkehrsbundesamts ), hereinafter referred to as “the Commission”) identified other possible flight paths.

From 10 November 1994 to 26 October 1995, still in order to obtain further data, a number of the new flight routes were used. This resulted in numerous protests on the part of the then affected communities.

On 26 October 1995 the Federal Aviation Office re-determined the flight routes for air traffic coming and going from the northeast – by means of an amendment to the Fifth Decree of the 147 th Order implementing the Aviation Order ( Fünfte Verordnung zur Änderung der Hundertsiebenundvierzigsten Durchführ ungsverordnung zur Luftverkehrs ‑ Ordnung ).

On 11 November 1996 the applicants lodged a constitutional complaint against this decree.

On 23 April 1997 the Federal Constitutional Court refused to admit the constitutional complaint on the ground that the applicants were first to seek protection before the administrative courts.

2. Proceedings before the administrative courts

On 23 October 1997 the applicants lodged a claim against the decree with the Nordrhein-Westfalen Administrative Court of Appeal.

On 19 August 1999 the Nordrhein-Westfalen Administrative Court of Appeal rejected the claim as inadmissible.

On 28 June 2000 the Federal Administrative Court quashed that decision and remitted the case.

On 4 March 2002 the Nordrhein-Westfalen Administrative Court of Appeal rejected the claim as unfounded. It also refused leave to appeal.

On 16 December 2002 the Federal Administrative Court rejected the applicants ’ appeal against the refusal for leave to appeal. It found that they merely criticised the decision in general terms without, however, substantiating any reason justifying leave t o appeal as required by section 133 § 3 Federal Code of Administrative Proceedings (see “Relevant domestic law” below).

3. Second constitutional complaint

On 7 February 2003 the applicants lodged a constitutional complaint.

On 30 August 2005 the Federal Constitutional Court refused to admit the constitutional complaint. It found that the applicants had failed to comply with the requirement to exhaust domestic remedies in accordance with the formal requirements laid down in domestic law.

The applicants received the decision on 5 September 2005.

B. Relevant domestic law

Under section 133 § 3 s. 3 Federal Code of Administrative Proceedings a complaint against a refusal for leave to appeal must lay down either the fundamental importance of the matter, indicate the decision with which the impugned decision does not comply or indicate the alleged procedural shortcomings.

COMPLAINT

The applicants complained under Article 6 of the Convention about the length of time for which the proceedings were pending before the Federal Constitutional Court .

THE LAW

The applicants complained under Article 6 § 1 of the Convention about the length of the proceedings before the Federal Constitutional Court . Article 6 of the Convention , in so far as relevant, reads as follows:

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

In their submissions the Government firstly argued that Article 6 § 1 of the Convention did not apply in the instant case since there was no dispute over a civil right. Secondly, they argued that the applicants ’ complaint was inadmissible for non-exhaustion of domestic remedies. In their view, the applicants had been obliged to complain about any unreasonable length of the proceedings before the Federal Constitutional Court during the pending constitutional complaint since that court could have reacted effectively itself.

The applicants contested both views.

The Court, having regard to its case-law on the applicability of Article 6 of the Convention (see, among others, Voggenreiter v. Germany , no. 47169/99, §§ 31, 32 and 44 ECHR 2004 ‑ I (extracts)) , notes firstly that the present proceedings concerned questions relating to the applicants ’ protection from environmental pollution and that they relied on their right to home and property – rights not only guaranteed by the German Basic Law, but also under Article 8 of the Convention and Article 1 Protocol No. 1 and which are clearly civil in nature. Accordingly, and notwithstanding the public-law aspects, the proceedings in question concerned a civil right. The Court finds also that it does not need to decide whether the applicants had at their disposal an effective remedy to complain about the length of the proceedings before the Federal Constitutional Court since it considers that the application in any event is inadmissible for the following reasons.

The Government moreover argued that in any event the complaint was manifestly ill-founded. They emphasised in particular that the present case was complex since the Federal Constitutional Court had to retrace the domestic courts ’ decisions on planning-related aspects of aviation law. They further stressed the special features of the procedure in the Federal Constitutional Court and submitted that it necessarily had to place priority to cases which appear well-founded and that , in the past few years, a number of efforts had been taken to shorten the length of the proceedings before that court.

The Court notes first that it is concerned only with the length of the proceedings before the Federal Constitutional Court . Thus the relevant period began on 7 February 2003, the date on which the constitutional complaint was lodged. It ended on 5 September 2005, the date on which the Constitutional Court ’ s decision of 30 August 2005 was notified on the applicants. It therefore lasted for about two years and six months.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

In the present case, the Court finds that the length of the proceedings did not exceed the “reasonable time” requirement of Article 6 § 1 of the Convention. In this respect it notes in particular that in spite of the fact that the Federal Constitutional Court rejected the second constitutional complaint merely on the ground that the applicants had failed to exhaust domestic remedies in accordance with the formal requirements laid down in domestic law, the issue nonetheless was in the context of noise pollution and therefore of a certain complexity. In the light , moreover, of the fact that i ts role as guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account other considerations than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see, among others, Süßmann v. Germany (application no. 20024/92, judgment of 31 August 1996) , the Court finds that the applicants ’ complaint is manifestly ill-founded and must be rejecte d in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

             Stephen Phillips BoÅ¡tjan M. Zupančič Deputy Registrar President