FIFTH SECTION
DECISION
Application no. 41394/11
Stefan BANDELIN
against Germany
The European Court of Human Rights (Fifth Section), sitting on 22 January 2013 as a Committee composed of:
Ganna Yudkivska, President,
Angelika Nußberger,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 4 July 2011,
Having regard to the decisions in the cases of Taron v. Germany (dec.) no. 53126/07, 29 May 2012, Garcia Cancio v. Germany (dec.) no. 19488/09, 29 May 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Stefan Bandelin, is a German national, who lives in Berlin. He is represented before the Court by Mr H.-P. Vierhaus, a lawyer practising in Berlin.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Proceedings at issue
3. On 27 June 2007 the applicant and two other natural persons filed an administrative lawsuit against the Berlin Municipality at the Berlin Administrative Court relating to the allegedly illegal use of a neighbouring building as a hotel.
4. On 29 June 2007 the owner of the building in question was summoned as a third party to the proceedings. Thereafter, the applicant repeatedly asked the court to take further action such as scheduling an oral hearing.
5. On 31 August 2010 the court took evidence and held an oral hearing on the site of the building in question.
6. On 15 March 2011 the court dismissed the claim of the applicant.
7. Subsequently, the applicant filed for leave to appeal at the Berlin Administrative Court of Appeal. The proceedings are pending.
2. Subsequent developments
8. On 7 December 2011 the Government informed the Court that in response to the pilot judgment Rumpf v. Germany (no. 46344/06, 2 September 2010) an Act against Excessive Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) had been published in the Federal Law Gazette and had entered into force on 3 December 2011.
9. In December 2011 the Court informed all applicants of cases communicated to the respondent Government and concerning a complaint in regard to excessive duration of proceedings of the enactment of the new domestic remedy and drew their attention to the interim provision of that Act.
B. Relevant domestic law
Act against Excessive Court Proceedings and Criminal Investigations
10. A general description of the features of this Act and its interim provision can be found in the decisions Taron v. Germany (cited above) and Garcia Cancio v. Germany (cited above).
COMPLAINT
11. The applicant complained under Article 6 § 1 and under Article 13 of the Convention that the duration of the administrative proceedings was excessive and that the domestic law did not provide for an effective remedy in that regard.
THE LAW
A. Complaint under Article 6 § 1 concerning the length of proceedings
12. The applicant complained about the length of the administrative proceedings under Article 6 § 1 of the Convention. This provision provides as follows:
“In the determination of his civil rights and obligations, everyone is entitled to a ... hearing within a reasonable time ...”
13. The Court found in Taron v. Germany (cited above, §§ 40 and seq.) that the Act against Excessive Court Proceedings was enacted to address the issue in a prima facie effective and meaningful manner, taking account of the Convention requirements. The Court saw no reason to believe that the new remedy would not afford the applicant the opportunity to obtain adequate and sufficient compensation for his grievances or that it would not offer reasonable prospects of success. The Court found it appropriate and justified to require even those applicants who had lodged their application before the entering into force of the Act to avail themselves to the new domestic remedy.
14. In the present case the Court sees no reasons to come to a different conclusion. The applicant cannot claim special circumstances which require his complaint to be examined by this Court rather than the national courts. In particular, he can not claim that he or his counsel was not properly aware of the new domestic remedy. The Court points out that it found in Taron v. Germany (cited above, § 44):
“that after the judgment in Sürmeli v. Germany ([GC], no. 75529/01, ECHR 2006‑VII, 8 June 2006) it had become clear that the existing legal provisions in Germany were insufficient to expedite proceedings and to compensate for protracted proceedings. Since then the German legislator has worked on various ways to comply with the requirements of the Convention which finally resulted in the above mentioned Remedy Act.”
15. The Court notes in this context that it is the primary task of the applicants to observe national developments relevant to their applications and to react accordingly. This holds particularly true in circumstances when the Court had already set in September 2010 the respondent Government a time-limit for implementing a legal remedy against excessive duration of court proceedings (see Rumpf v. Germany, cited above). Lastly, the Court published a press release on 1 June 2012 following the decisions of Taron v. Germany and Garcia Cancio v. Germany, cited above, on its website informing that applicants of pending cases concerning length of proceedings must make use of the new national remedy.
16. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Complaint under Article 13 concerning the lack of an effective domestic remedy
17. Given that the applicant’s complaint under Article 6 has been rejected for non-exhaustion of domestic remedies, the related complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsGanna Yudkivska
Deputy RegistrarPresident
Full & Egal Universal Law Academy