CEDH · CASELAW;REPORTS;ENG — 25 juin 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. 20950/92                                 M. P.                                against                                 Germany                        REPORT OF THE COMMISSION                     (adopted on 25 June 1996)                            TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-5) . . . . . . . . . . . . . . . . . . . . . .1     II.   ESTABLISHMENT OF THE FACTS      (paras. 6-22). . . . . . . . . . . . . . . . . . . . . .3     III. OPINION OF THE COMMISSION      (paras. 23-48) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 23). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 24). . . . . . . . . . . . . . . . . . . . .6        C.    Article 6 para. 1 of the Convention           (paras. 25-47). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 48). . . . . . . . . . . . . . . . . . . . 10       APPENDIX I   :   PARTIAL DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 11   APPENDIX II :   FINAL DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 16     I.    INTRODUCTION   1.    The present Report concerns Application No. 20950/92 introduced on 9 June 1992 against the Federal Republic of Germany and registered on 16 November 1992.        The applicant is a German national born in 1937 and resident in Karlsruhe.   She is represented by Mr. P. Kloer, a lawyer practising in Munich.        The respondent Government are represented by Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of Justice.   2.    The complaint relating to the length of the proceedings (Article 6 para. 1 of the Convention) was communicated to the Government for observations on 28 June 1994. The remainder of the application was declared inadmissible.   Following an exchange of written observations, the complaint relating to the length of proceedings was declared admissible on 26 June 1995.   The decisions on admissibility are appended to this Report.   3.    Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission, after deliberating, adopted this Report on 25 June 1996, in accordance with Article 31 para. 1 of the Convention, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                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                C.B. REFFI                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS     4.    In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Germany.   5.    The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.     II.   ESTABLISHMENT OF THE FACTS     A.    The particular circumstances of the case   6.    The applicant is the owner of inherited real estate which is leased to an Allotment Garden Association (Kleingartenverein) in Munich.   The lease was concluded for the period 1 January 1955 until 31 December 1979.   It concerned 44,271 square metres of real estate. The rent was 0.10 DM per square metre, per year.   7.    By letter of 22 November 1976 the applicant denounced the lease with effect from 31 December 1979.   The tenant association disputed the applicant's right to denounce the lease.   Consequently on 20 February 1978 the applicant brought an action for the eviction of the tenant.   8.    On 19 April 1978 the Munich I Regional Court (Landgericht) dismissed the applicant's action.   The applicant lodged an appeal (Berufung) with the Munich Court of Appeal (Oberlandesgericht).   9.    On 6 November 1978 the Munich Court of Appeal stayed the proceedings at the request of both parties in order to await the outcome of constitutional complaint proceedings relating to allotment garden law.   A decision in that matter was given by the Federal Constitutional Court (Bundesverfassungsgericht) on 12 June 1979. The civil proceedings were continued in November 1979.   10.   On 14 April 1981 the Court of Appeal again stayed the proceedings pending new legislation in respect of allotment gardens which had become necessary on account of the Federal Constitutional Court's decision of 12 June 1979. On 28 February 1983 a new Federal Allotment Garden Act (Bundeskleingartengesetz) entered into force and the civil proceedings were resumed on 14 June 1983.   11.   On 12 December 1983 the Munich Court of Appeal dismissed the applicant's appeal.   12.   On 19 December 1983 the applicant lodged an appeal on points of law (Revision) with the Federal Court of Justice (Bundesgerichtshof). On 13 December 1984 the Federal Court of Justice admitted her appeal.   13.   On 24 May 1985 the Federal Court of Justice suspended the proceedings in order to obtain a decision of the Federal Constitutional Court on the question of the compatibility of S. 16 para. 3 of the Federal Allotment Garden Act with the constitutional right to protection of property. Similar questions, including one concerning S. 16 para. 4 of the Allotment Garden Act, were submitted to the Federal Constitutional Court by the Hamm Court of Appeal on 26 June 1987 and 6 March 1992.   14.   On 23 September 1992 the Federal Constitutional Court gave its decision relating to the Allotment Garden Act. The Constitutional Court held that S. 16 paras. 3 and 4 were unobjectionable while, however, S. 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.   15.   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, S. 114-151). It appeals 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 the Federal Court of Justice.   16.   On 23 April 1993, in the resumed proceedings, the Federal Court of Justice dismissed the applicant's appeal on points of law.     B.    Relevant domestic law   1.    The Federal Allotment Garden Act   17.   S. 16 para. 3 of the Federal Allotment Garden Act (Bundeskleingartengesetz) provides that certain temporary lease contracts concluded before the entry into force of the Act do not expire before 31 March 1987. According to paragraph 4 of this provision, 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).   2.    The proceedings before the Federal Constitutional Court   18.   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.   19.   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 ... "   20.   The statute and procedure of the Federal Constitutional Court are regulated by the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht).   21.   S. 2 of the Federal Constitutional Court Act provides that the Federal Constitutional Court consists of two Chambers, each composed of eight judges.   22.   In proceedings relating to the question of compatibility of a statute with the Basic Law (Normenkontrollverfahren) the Federal Constitutional Court shall, in accordance with SS. 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 at issue, the Governments of the Länder to submit observations within a given time-limit.     III. OPINION OF THE COMMISSION     A.    Complaint declared admissible   23.   The Commission has declared admissible the applicant's complaint that her case was not heard within a reasonable time by the Federal Constitutional Court.     B.    Point at issue   24.   The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.     C.    Article 6 para. 1 (Art. 6-1) of the Convention   25.   The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows :        "In the determination of his civil rights and obligations ...,      everyone is entitled to a ... hearing within a reasonable time      by ... (a) tribunal ..."   26.   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.     1.    Applicability of Article 6 para. 1 (Art. 6-1)   27.   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.   28.   The Government submit that Article 6 para. 1 (Art. 6-1) does not apply to proceedings before the Federal Constitutional Court.   29.   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 is no conceivable case in which the Constitutional Court's decision has 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).   30.   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 disputes in the civil or criminal field.   Rather the Constitutional Court is the supreme guardian of the Constitution and checks whether Parliament, authorities and courts have complied with the Basic Law.   As regards the examination of human rights violations, the Federal Constitutional Court exercises control on the domestic level similar to that exercised by Convention organs on the basis of international law.   Thus, the Federal Constitutional Court does not, on account of the concrete norm control proceedings under Article 100 of the Basic Law, become part of the chain of courts provided for the adjudication of civil cases.   While the specific case is a procedural requirement for setting proceedings in motion for review of a norm, the importance of the whole proceedings goes far beyond this specific cause.   The particular features of concrete norm review proceedings are also apparent from the fact that the Federal Constitutional Court can join several such cases in order to allow for a comprehensive examination of, and decision on, the questions raised.   It acts as a "national authority" within the meaning of Article 13 (Art. 13) of the Convention, which does not, however, require a decision "within a reasonable time".   31.   The Government further submit that, having regard to the nature of the Federal Constitutional Court's duties, a complainant cannot expect the Federal Constitutional Court always to give its decisions in the order in which the cases come in.   On the contrary, it must be able to fix the dates for decisions in the light of objective urgency. They also point out the far-reaching consequences for the functioning and the structure of the Federal Constitutional Court, should Article 6 (Art. 6) be regarded as applicable.   According to the Government, the two existing Chambers would no longer be able to cope with the Court's workload.   32.   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; as recent authority Stran Greek Refineries and Stratis Andreadis judgment of 9 December 1994, Series A no. 301-B, p. 78, para. 39).   33.   The applicant's complaint under Article 6 para. 1 (Art. 6-1) concerns 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 claim at issue in these proceedings 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).   34.   The Commission recalls that 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, where it declined to revert to the approach taken in the Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para. 48).   35.   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 her civil rights, namely her property, but in addition the termination of the constitutional court proceedings was a prerequisite for the continuation of the civil proceedings.   36.   In these circumstances, the constitutional court proceedings in question fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   2.    Compliance with Article 6 para. 1 (Art. 6-1)   37.   The Commission first notes that the applicant lodged her civil action in February 1978.   She has however not alleged a breach of her right to a hearing within a reasonable time before the case was submitted to the Federal Constitutional Court on 24 May 1985.   The Commission observes that, at that stage, the proceedings had already been pending for more than seven years.   However, the proceedings were stayed, upon the request of the parties, from November 1978 until November 1979 pending proceedings before the Federal Constitutional Court relating to allotment gardens law, and between April 1981 and June 1983 pending the enactment of new legislation.   38.   The Commission considers that the crucial period to be examined under Article 6 para. 1 (Art. 6-1) in the present case started on 24 May 1985 when the case was submitted to the Federal Constitutional Court by the Federal Court of Justice and ended on 23 September 1992 when the Federal Constitutional Court gave a decision.   These proceedings lasted seven years and four months.   39.   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 (cf. 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, p. 19, para. 47, and p. 21, para. 57).   40.   According to the Government, the length of the constitutional court proceedings in question was due to the workload of the First Chamber of the Federal 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.   41.   The applicant submits that the length of the proceedings before the Federal Constitutional Court was excessive and had confiscatory effects.   42.   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 argued decision of 23 September 1992 confirms that the subject matter was a difficult one.   43.   There is nothing to show that the applicant caused any delays in these proceedings.   44.   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.   45.   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).   46.   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).   47.   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 German unification.   The Commission considers that the constitutional court proceedings lasting more than seven years exceeded a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention having regard in particular to the fact that the underlying proceedings had already been pending for a considerable period 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   48.   The Commission concludes by 24 votes to 5 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)