CEDH · CASELAW;REPORTS;ENG — 25 janvier 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                EUROPEAN COMMISSION OF HUMAN RIGHTS                        Application No. 17820/91                                 F.W.P.                                 against                                 Germany                        REPORT OF THE COMMISSION                    (adopted on 25 January 1996)                            TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-12) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 13-17). . . . . . . . . . . . . . . . . . .2     II.   ESTABLISHMENT OF THE FACTS      (paras. 18-32) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 18-28). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 29-32). . . . . . . . . . . . . . . . . . .4     III. OPINION OF THE COMMISSION      (paras. 33-59) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 33). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 34). . . . . . . . . . . . . . . . . . . . .6        C.    As regards Article 6 para. 1 of the Convention           (paras. 35-58). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 59     APPENDIX I:     HISTORY OF THE PROCEEDINGS . . . . . . . . . 10   APPENDIX II:    DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 12     I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.    The application   2.    The applicant is a German citizen, born in 1933 and resident in Hanover.   3.    The application is directed against Germany.   The respondent Government were represented by Dr. J. Meyer-Ladewig.   4.    The case concerns the length of norm control proceedings before the Federal Constitutional Court in the context of civil proceedings. The applicant invokes Article 6 para. 1 of the Convention.     B.    The proceedings   5.    The application was introduced on 15 August 1990 and registered on 19 February 1991.   6.    On 2 July 1991 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 16 December 1991 after an extension of the time-limit.   The applicant replied on 18 March 1992 and submitted supplementary information on 10 February 1993.   8.    On 16 May 1992 the Commission adjourned the examination of the application pending the judgment of the European Court of Human Rights in the Ruiz Mateos case.   On 10 January 1994 the Commission decided to propose to the parties that they submit further observations on the admissibility and merits in the light of the Ruiz Mateos judgment which had in the meantime been pronounced on 23 June 1993.   9.    On 21 February 1994 the Government submitted supplementary observations.   The applicant did not reply.   By letter of 16 January 1994 he had informed the Commission about the state of the civil proceedings.   10.   On 10 January 1995 the Commission declared the application admissible.   11.   The text of the Commission's decision on admissibility was sent to the parties on 19 January 1995 and they were invited to submit such further information or observations on the merits as they wished.   12.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.    The present Report   13.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                C.L. ROZAKIS                E. BUSUTTIL                G. JÖRUNDSSON                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                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                E. KONSTANTINOV                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL   14.   The text of this Report was adopted on 25 January 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   15.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   16.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   17.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   18.   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.   19.   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.   20.   On 28 February 1983 a new Federal Allotment Garden Act (Bundeskleingartengesetz) entered into force   and the civil proceedings were resumed at the applicant's request on 17 March 1983.   21.   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.   22.   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 security (Kaution) in the amount of 2,000,000 DM.   23.   The applicant's request to suspend the proceedings and submit the question whether or not certain provisions of the new Federal Allotment Garden Act were in conformity with the Basic Law (Grundgesetz) was not granted by the Regional Court.   24.   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 Federal 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.   25.   On 26 June 1987 the case was submitted to the Federal Constitutional Court.   The Federal Court (Bundesgerichtshof) had on 24 May 1985 likewise submitted a request to the Federal Constitutional Court about the compatibility of Section 16 (3) of the Federal Allotment Garden Act with the Constitution.   Both cases were joined. Section 16 (3) of the Federal Allotment Garden Act provides that certain temporary lease contracts concluded before the entry into force of the Act do not expire before 31 March 1987.   Para. 4 of the Section provides that certain lease contracts are extended for an indefinite period if the community issues within the time-limit set in para. 3 a development plan (Bebauungsplan) in which the areas of long-term small allotment garden lease contracts are determined (Festsetzung der Pachtfläche für Dauerkleingärten).   26.   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 unification, a decision on the constitutionality of the Allotment Garden Act could not be expected before 1991.   On 23 September 1992 the First Chamber of the Federal Constitutional Court gave judgment in the matter finding that Section 16 (3) and (4) were unobjectionable while, however, Section 5 para. 1, first sentence, of the Act in question was not compatible with Article 14 para. 1, first sentence, of the Basic Law (Grundgesetz) in so far as this provision fixed a limit for the amount of lease and thereby imposed an excessive and disproportionate burden on property owners.   The latter issue had been examined by the Federal Constitutional Court ex officio.   27.   The decision of 23 September 1992 is published in the Federal Constitutional Court's official collection of decisions, Vol. 87, p. 114 to 151 (BVerfGE 87, 114-151).   It follows from the decision that the Federal Constitutional Court received observations from the Federal Ministry for Regional Planning (Raumordnung, Bauwesen und Städtebau) on behalf of the Federal Government, the organisation of German cities (Deutscher Städtetag) and four other non-governmental organisations, the plaintiff in the respective civil proceedings and from the Federal Court.   28.   Subsequent to the Constitutional Court's decision of 23 September 1992, the Court of Appeal resumed the proceedings but no judgment has yet been given.     B.    Relevant domestic law   29.   According to Article 93 para. 5 in connection with Article 100 para. 1 of the German Basic Law (Grundgesetz) the Federal Constitutional Court decides inter alia at the request of an ordinary court on the compatibility of a statute with the Basic Law.        Article 100 para. 1 reads in its relevant parts:   [Translation]        "(1) Where a court considers that a statute on whose validity      its decision depends is unconstitutional, the proceedings shall      be stayed and ..., where this Basic Law is held to be violated,      a decision shall be obtained from the Federal Constitutional      Court ..."   [German]        "(1) Hält ein Gericht ein Gesetz, auf dessen Gültigkeit es bei      der Entscheidung ankommt, für verfassungswidrig, so ist das      Verfahren auszusetzen und ... wenn es sich um die Verletzung      dieses Grundgesetzes handelt, die Entscheidung des      Bundesverfassungsgerichtes einzuholen ... "   30.   The statute and procedure of the Federal Constitutional Court are regulated by the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht).   31.   Section 2 of the Federal Constitutional Court Act provides that the Federal Constitutional Court consists of two Chambers, each composed of eight judges.   32.   In proceedings relating to the question of compatibility of a statute with the Basic Law (Normenkontrollverfahren) the Federal Constitutional Court shall, in accordance with Sections 82 and 77 of the Federal Constitutional Court Act invite the Federal Parliament (Bundestag), the Federal Council (Bundesrat), the Federal Government (Bundesregierung) and, if Federal Law is in question,   the Governments of the Länder to submit observations within a given time-limit.     III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   33.   The Commission has declared admissible the applicant's complaint that the civil proceedings which he instituted on 23 May 1980 and which are still pending were unreasonably long.     B.    Point at issue   34.   The only point at issue therefore is whether the length of the proceedings, in particular the constitutional court proceedings, exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.     C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   35.   The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:        "1.   In the determination of his civil rights and obligations      ..., everyone is entitled to a ... hearing within a reasonable      time by (a) tribunal ..."   36.   The applicant, plaintiff in civil proceedings, criticises only the length of the proceedings before the Federal Constitutional Court. These proceedings related to a request submitted to the Federal Constitutional Court by the civil court dealing with the applicant's case and raising the question of whether or not the statute applicable in the matter was compatible with the Basic Law.   a.    Applicability of Article 6 para. 1 (Art. 6-1)   37.   According to the applicant the length of the proceedings before the Federal Constitutional Court falls to be examined under Article 6 para. 1 (Art. 6-1) of the Convention as the civil proceedings had to be adjourned pending the outcome of these proceedings.   38.   The Government submit that Article 6 para. 1 (Art. 6-1) does not apply to the proceedings before the Federal Constitutional Court relating to the request of a civil court about the compatibility of a statute with the Basic Law.   39.   They consider that the criterion applied in the case-law of the European Court of Human Rights, namely whether or not the Constitutional Court's decision was capable of affecting the outcome of the case which has been litigated before the ordinary courts, is inappropriate, as there was no conceivable case in which the Constitutional Court's decision had no effect on the proceedings before the ordinary courts.   The constitutional court's proceedings would thus always be covered by Article 6 para. 1 (Art. 6-1).   It had however not been envisaged by the German Government at the time of the ratification of the Convention that the constitutional court proceedings would fall under Article 6 (Art. 6).   40.   The Government are of the opinion that proceedings before the Federal Constitutional Court, taking into account its particular position and tasks under the German Basic Law, cannot be regarded as relating to a dispute over "civil rights and obligations".   Rather the Constitutional Court decides on the constitutional aspects of a case and not on the merits of the dispute between the parties.   41.   The Government submit that the role of the Federal Constitutional Court is to interpret and preserve constitutional law in an objective manner.   It performs domestically a control function comparable with that operated by the organs of the Convention on an international level.   It also acts as a "national authority" within the meaning of Article 13 (Art. 13) of the Convention.   That Article does not, however, require a decision "within a reasonable time".   42.   The Government further submit that in view of the very special significance of norm control proceedings, an individual affected by such proceedings cannot always expect the Federal Constitutional Court to take its decision according to the sequence in which the submissions are received.   Instead the very nature of the Federal Constitutional Court's work means that it should have the opportunity to schedule its decisions according to the urgency of the subject-matter concerned. In its decision, the Court has to weigh up factors extending beyond the limits of the individual case which are in part similar to those taken into consideration by a legislator before issuing or rescinding a legal norm.   Its proceedings cannot therefore be measured according to the same yardstick as those heard by courts taking decisions on individual cases only.   43.   The Commission recalls that Article 6 para. 1 (Art. 6-1) applies to "all proceedings the result of which is decisive for private rights and obligations" and that "the character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc.) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc.) are therefore of little consequence" (Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 94; Stran Greek Refineries and Stratis Andreadis judgment of 9 December 1994, Series A no. 301-B, p. 78, para. 39).   44.   The applicant's complaint under Article 6 para. 1 (Art. 6-1) concerns in particular the length of the constitutional court proceedings relating to the question of whether or not the statute applicable in the applicant's civil proceedings is compatible with the Basic Law.   The civil proceedings however relate to the determination of the applicant's property right.   The entitlement at issue is as such a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Zander judgment of 25 November 1993, Series A no. 279-B, p. 40, para. 27).   45.   For the purpose of calculating the relevant period when the reasonable length of civil proceedings is at issue, proceedings in a Constitutional Court have been taken into account where the result of such proceedings is capable of affecting the outcome of the proceedings before the ordinary courts (Eur. Court H.R., Ruiz-Mateos judgment of 23 June 1993, Series A no. 262, pp. 19-20, para. 35-37, with further references, as well as the Court's statement, at p. 19, para. 35, abandoning the approach taken in the Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para. 48).   46.   The Commission finds that these considerations apply a fortiori in the present case, where the constitutional court proceedings were initiated by a civil court in connection with and for the purpose of the determination of a civil claim raised by the applicant.   Not only was the outcome of the constitutional court proceedings decisive for the determination of his civil rights, namely his property, but in addition the termination of the constitutional court proceedings was a prerequisite for the continuation of the civil proceedings.   47.   In these circumstances, the constitutional court proceedings in question fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   b.    Compliance with Article 6 para. 1 (Art. 6-1)   48.   The Commission first notes that the applicant lodged his civil action on 23 May 1980.   He has however not alleged that these proceedings were unduly delayed before the case was submitted to the Federal Constitutional Court on 26 June 1987.   In fact before the latter date the proceedings had to be stayed from 14 August 1980 until 17 March 1983 pending new legislation (see paras. 19 and 20). Subsequently they were suspended with the applicant's consent from 6 June 1983 until 20 August 1985 on account of the preparation of a new construction plan (see para. 21).   The length of that part of the proceedings does not in these circumstances appear to be unreasonable.   49.   The Commission therefore considers that the crucial period to be examined under Article 6 para. 1 (Art. 6-1) in the present case started on 26 June 1987 when the case was submitted to the Federal Constitutional Court by the Hamm Court of Appeal and ended on 23 September 1992 when the Federal Constitutional Court gave a decision.   These proceedings lasted five years and almost three months.   50.   The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   On the latter point, the importance of what is at stake for the applicant in the litigation has to be taken into account (cf. Eur. Court H.R., Allenet de Ribemont judgment of 10 February 1995, Series A no. 308, paras. 47, 57).   51.   According to the Government, the length of the constitutional court proceedings in question was due to the workload of the First Chamber of the Constitutional Court in general and the fact that in consequence of the German unification several constitutional complaints relating to various regulations in the Unification Treaty had to be given priority in view of the importance for the public in general of the issues raised in these cases.   For example the First Chamber decided on 23 April 1991 that the Basic Law was not violated by the regulation in the Unification Treaty according to which expropriations carried out between 1945 and 1949 under the Soviet occupation authority remained valid.   In view of this and other important cases the examination of the present matter which had originally been scheduled for the end of 1990 had had to be adjourned.   The Government also point out that the case had to be decided by the Chamber, that means it could not have been delegated to a panel of three judges.   52.   The applicant submits that whenever the Constitutional Court holds a legislative provision to be unconstitutional the matter will be prolonged by the necessity to institute time-consuming proceedings for the enactment of new legislation.   Therefore he considers that norm control proceedings should be carried out with particular diligence.   53.   The Commission first finds that the constitutional court proceedings were complex in view of the general interest of the issues raised and the necessity to obtain and take into account observations from various authorities.   The extensive and thoroughly argumented decision of 23 September 1992 confirms that the subject matter was a difficult one.   54.   There is nothing to show that the applicant caused any delays to these proceedings.   55.   As regards the conduct of the Federal Constitutional Court, the Government have referred to the Federal Constitutional Court's unexpected increase in workload as a consequence of the German unification.   56.   The Commission recalls that Article 6 para. 1 (Art. 6-1) imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements (cf. Eur. Court H.R., Vocaturo judgment of 24 may 1991, Series A no. 206-C, p. 32, para. 17; Pizzetti judgment of 26 February 1993, Series A no. 257-C, p. 37, para. 18).   In this context weight must be attached not only to the special features of constitutional court proceedings, but also to the nature and general importance of the matters raised in the cases before the Constitutional Court (cf. Eur. Court H.R., Ruiz- Mateos judgment, loc. cit., p. 23, paras. 51-52).   57.   The Commission furthermore recalls that a temporary backlog of business does not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind (cf. Eur. Court H.R., Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 12, para. 29).   58.   It was, however, in the first place for the Federal Constitutional Court to adapt its procedure to the increased number of cases as a consequence of the German unification.   The Commission considers that the constitutional court proceedings lasting more than five years exceeded a reasonable time within the meaning of Article 6 para. 1 of the Convention having regard in particular to the fact that the Constitutional Court was already seized in the present matter on 24 May 1985 by the Federal Court and taking into account that the proceedings in question were of significant importance not only for the determination of the applicant's claim but also for other property owners in similar circumstances.          CONCLUSION   59.   The Commission concludes unanimously that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (S. TRECHSEL)                           APPENDIX I                       HISTORY OF THE PROCEEDINGS     Date                           Item _________________________________________________________________   15 August 1990                 Introduction of the application   19 February 1991               Registration of the application     Examination of Admissibility   2 July 1991                    Decision of the Commission to invite                               the Government to submit observations                               on the admissibility and merits of                               the application   16 December 1991               Government's observations     18 March 1992                  Applicants' observations in reply     16 May 1992                    Decision to adjourn the case pending                               the judgment of the European Court of                               Human Rights in the Ruiz Mateos case     10 January 1994                Decision of the Commission to invite                               the parties to submit further written                               observations in the light of the Ruiz                               Mateos judgment of 23 June 1993   22 February 1994               Government's additional observations                               in reply   14 April 1994                  Applicant's additional observations                               in reply   10 January 1995                Commission's deliberations and                               decision on admissibility   Examination of the merits     19 January 1995                Decision on admissibility transmitted                               to the parties.   Invitation to                               parties to submit further                               observations on the merits.   1 March 1995                   Possibility of friendly settlement                               rejected by Government.   15 May 1995                    Consideration of state of                               proceedings         Date                           Item _________________________________________________________________   21 October 1995                Consideration of state of                               proceedings   25 January 1996                Commission's deliberations on the                               merits, final vote and adoption of                               the Report