CASE OF PAMMEL v. GERMANY



      In the case of Pammel v. Germany (1),

      The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court B (2), as a Chamber composed of

the following judges:

      Mr   R. Ryssdal, President,

      Mr   R. Bernhardt,

      Mr   I. Foighel,

      Mr   R. Pekkanen,

      Mr   M.A. Lopes Rocha,

      Mr   L. Wildhaber,

      Mr   K. Jungwiert,

      Mr   U. Lohmus,

      Mr   J. Casadevall,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

      Having deliberated in private on 23 January and 29 May 1997,

      Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1.  The case is numbered 48/1996/667/853.  The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number).  The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2.  Rules of Court B, which came into force on 2 October 1994, apply

to all cases concerning the States bound by Protocol No. 9 (P9).

________________

PROCEDURE

1.    The case was referred to the Court by a German national,

Mr Friedrich Wilhelm Pammel ("the applicant"), on 21 March 1996, and

by the Government of the Federal Republic of Germany ("the Government")

on 27 March 1996, within the three-month period laid down by Article 32

para. 1 and Article 47 of the Convention (art. 32-1, art. 47).

      It originated in an application (no. 17820/91) against Germany

lodged by Mr Pammel with the European Commission of Human Rights

("the Commission") under Article 25 (art. 25) on 15 August 1990.

      The applicant's application bringing the case before the Court

referred to Article 48 of the Convention (art. 48), as modified by

Protocol No. 9 (P9), which Germany has ratified; the Government's

application referred to Articles 32 and 48 of the Convention (art. 32,

art. 48).  The object of the applications was to obtain a decision as

to whether the facts of the case disclosed a breach by the respondent

State of its obligations under Article 6 para. 1 of the Convention

(art. 6-1).

2.    On 21 March 1996 the applicant designated the lawyer who would

represent him (Rule 31 of Rules of Court B).  The President gave the

lawyer leave to use the German language in both the written and the

oral proceedings (Rule 28 para. 3).  The applicant, who was initially

designated by the letters F.W.P., subsequently consented to the

disclosure of his identity.

3.    The Chamber to be constituted included ex officio

Mr R. Bernhardt, the elected judge of German nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 4).  On 30 March 1996, in the presence of the

Registrar, Mr Ryssdal drew by lot the names of the other seven members,

namely Mr I. Foighel, Mr R. Pekkanen, Mr M.A. Lopes Rocha,

Mr L. Wildhaber, Mr K. Jungwiert, Mr U. Lohmus and Mr J. Casadevall

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

4.    As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting

through the Registrar, consulted the Agent of the Government, the

applicant and the Delegate of the Commission on the organisation of the

proceedings (Rules 39 para. 1 and 40).  Pursuant to the order made in

consequence, the Registrar received the applicant's memorial on

18 October 1996 and the Government's memorial on 21 October 1996.

      On 2 September 1996 the Commission had produced various documents

relating to the proceedings before it, as requested by the Registrar

on the President's instructions.

      On 5 November 1996 the Secretary to the Commission informed the

Registrar that the Delegate would present his submissions at the

hearing.

5.    On 29 October 1996 Mr Ryssdal had decided, in the interests of

the proper administration of justice and in accordance with Rule 21

para. 6, to allocate the case of Probstmeier v. Germany to the Chamber

already constituted to hear the present case.

6.    On 2 December 1996 the Government requested the Chamber to

relinquish jurisdiction immediately in favour of a Grand Chamber

(Rule 53).  On 20 January 1997 the Chamber decided not to accede to

that request.

7.    In accordance with the decision of the President, who had also

given the Government's Agent leave to plead in German (Rule 28

para. 2), the hearing concerning this case and the case of Probstmeier

v. Germany took place in public in the Human Rights Building,

Strasbourg, on 20 January 1997.  The Court had held a preparatory

meeting beforehand.

      There appeared before the Court:

(a)   for the Government

      Mrs  H. Voelskow-Thies, Ministerialdirigentin,

           Federal Ministry of Justice,                        Agent,

      Mr   M. Weckerling, Regierungsdirektor,

           Federal Ministry of Justice,

      Mr   E. Radzwill, Regierungsrat zur Anstellung,

           Federal Ministry of Justice,                     Advisers,

(b)   for the Commission

      Mr   B. Marxer,                                       Delegate;

(c)   for the applicant

      Mr   C. Lenz, of the Stuttgart Bar,                    Counsel;

(d)   for Mrs Probstmeier

      Mr   P. Kloer, of the Munich Bar,                      Counsel.

      The Court heard addresses by Mr Marxer, Mr Lenz, Mr Kloer and

Mrs Voelskow-Thies.

      At the hearing Mrs Voelskow-Thies also sought leave to reply in

writing to the claims under Article 50 (art. 50) lodged by the

applicant and Mrs Probstmeier.  By an order of 24 January 1997 the

President granted her request.  The Registrar received the Government's

supplementary memorial on 13 February 1997, Mrs Probstmeier's

observations in reply on 24 February and Mr Pammel's observations in

reply on 28 February.

AS TO THE FACTS

I.    Circumstances of the case

8.    Mr Friedrich Wilhelm Pammel, a German national born in 1933, is

a retired civil servant currently living in Hanover.

9.    In 1971 he inherited a plot of land 85,457 sq. m in area leased

to the Höxter town council in 1949 to be used as allotment gardens.

The initial lease ran until 30 September 1958.  By a clause

subsequently added to the lease, this was extended to

30 September 1978.  From 1 October 1955 the rent (Pachtzins) amounted

to 0.04 German marks (DEM) per square metre per year.

      The Höxter town council leased the land to the

Höxter Allotment Garden Association (Kleingartenverein), which, in its

turn, sub-let it to individual tenants.

      The Land Government fixed the rent at DEM 0.08 per square metre

per year with effect from 1 January 1977.

    A.     The proceedings in the administrative courts

10.   On 18 September 1978 the applicant applied to the

Minden Administrative Court (Verwaltungsgericht) contesting the rent

fixed by the Land Government and requesting the Administrative Court

to refer to the Federal Constitutional Court (Bundesverfassungsgericht)

the question of the constitutionality of the provisions of the

1919 Allotment Gardens Act (Kleingartenordnung) concerning rents.

11.   On 31 January 1980 the Administrative Court referred the case to

the Federal Constitutional Court in accordance with Article 100 para. 1

of the Basic Law (Grundgesetz) (see paragraph 34 below).

12.   In a letter of 15 May 1985 the Federal Constitutional Court asked

the Administrative Court to reconsider its decision to refer the case

(Vorlagebeschluß), to expand it if need be or to revoke it.

13.   On 22 May 1985 the Administrative Court withdrew its request for

a reference and gave judgment against the applicant.

      The applicant appealed against the above judgment to the

Münster Administrative Court of Appeal (Oberverwaltungsgericht).

14.   In a judgment of 16 May 1988 the Administrative Court of Appeal

set aside the judgment of the Administrative Court and the impugned

decision of the Land Government fixing the rent.

      B.   The proceedings in the civil courts

15.   In a letter of 16 March 1976 the applicant terminated the lease

with effect from 30 September 1978.  He subsequently repeated the

notice of termination several times.

16.   On 23 May 1980 the applicant brought proceedings in the

Paderborn Regional Court (Landgericht) seeking an order for possession

(Räumung) against the Höxter town council and the

Allotment Garden Association.

17.   On 14 August 1980 the Regional Court decided to stay the

proceedings (das Verfahren auszusetzen) following a judgment of the

Federal Constitutional Court of 12 June 1979 in which it had been held

that some of the provisions of the Allotment Gardens Act concerning the

termination of leases were unconstitutional.

18.   The new Federal Allotment Gardens Act (Bundeskleingartengesetz)

of 28 February 1983, came into force on 1 April 1983, and the

proceedings in the Regional Court were resumed at the applicant's

request on 17 March 1983.

19.   From 6 June 1983 to 20 August 1985 the Regional Court stayed the

proceedings (das Verfahren ruhen lassen) on the ground that the

Höxter town council intended to draw up a land-use plan (Bebauungsplan)

designating the land in question as a "permanent allotment garden zone"

(Fläche für Dauerkleingärten - see section 16 (4) of the

Federal Allotment Gardens Act, paragraph 30 below).

20.   On 7 November 1985 the Regional Court, after holding a hearing

at Mr Pammel's request, granted his application in part.  It ordered

the whole site to be returned to him, not immediately, but on

31 March 1987, in accordance with section 16 (3) of the

Federal Allotment Gardens Act (see paragraph 30 below).  In addition,

it held that this provision was compatible with Article 14 of the

Basic Law (see paragraph 29 below) and refused to refer the case to the

Federal Constitutional Court as the applicant had requested.

21.   The defendants, namely the Höxter town council and the

Allotment Garden Association, appealed against the above judgment to

the Hamm Court of Appeal (Oberlandesgericht).

22.   On 18 December 1986 the Höxter town council adopted the land-use

plan it had announced (see paragraph 19 above).  The

administrative authorities' decision approving this plan was published

on 14 March 1987.

23.   On 20 May 1987 the Court of Appeal decided to stay the

proceedings and refer the case to the Federal Constitutional Court,

submitting the following two questions:

      "1.  Is it compatible with Article 14 of the Basic Law for a

      lease granted by a private lessor before the entry into force of

      the Federal Allotment Gardens Act of 28 February 1983, for a

      fixed term due to expire before the Act came into force, and in

      respect of allotment gardens which are not permanent, to expire

      only on 31 March 1987 pursuant to section 16 (3) of the Act?

      and, if so,

      2.   Is it compatible in such a case with Article 14 of the

      Basic Law for the lease referred to in the first sentence of

      section 16 (4) of the Allotment Gardens Act to be extended for

      an indefinite period where a local authority has adopted a

      land-use plan designating a zone to be used for 'permanent

      allotment gardens' before expiry of the lease as defined in

      section 16 (3) of the Act?"

      The Court of Appeal held that the question of the

constitutionality of section 16 (3) and, in the event of the latter

being pronounced compatible with the Basic Law, of section 16 (4) of

the Federal Allotment Gardens Act was decisive for the outcome of the

proceedings.  The contractual relation between the plaintiff and the

defendants would continue, in spite of the termination of the lease on

30 September 1978, if it had been extended:

      - initially until 31 March 1987, pursuant to section 16 (3) of

the Federal Allotment Gardens Act and

      - subsequently under the land-use plan of 18 December 1986 for

an indefinite period, pursuant to the first sentence of section 16 (4)

of the Act.

    C.     The proceedings in the Federal Constitutional Court

24.   On 26 June 1987 the Court of Appeal referred the case to the

Federal Constitutional Court, in accordance with the first sentence of

Article 100 para. 1 of the Basic Law (see paragraph 34 below).

25.   In the meantime, on 24 May 1985, the Federal Court of Justice

(Bundesgerichtshof) had referred to the Federal Constitutional Court

the question concerning the constitutionality of section 16 (3) of the

Federal Allotment Gardens Act raised in the Probstmeier case (see the

Probstmeier v. Germany judgment of 1 July 1997, Reports of Judgments

and Decisions 1997-IV).

26.   The Federal Constitutional Court decided to join the two cases.

27.   In a letter of 16 November 1990 the Federal Constitutional Court

informed the applicant that because of its caseload, which had

increased after the reunification of Germany, judgment would not be

given on the question of the constitutionality of the provisions of the

Federal Allotment Gardens Act before 1991.

28.   After receiving the observations made by the Minister for

Town and Country Planning (Raumordnung, Bauwesen und Städtebau) on

behalf of the Federal Government, and those of the Organisation of

German Towns (Deutscher Städtetag), four other non-governmental

organisations, the parties and the Federal Court of Justice, the

Federal Constitutional Court decided to extend the review of

constitutionality so as to embrace the first sentence of section 5 (1)

of the Federal Allotment Gardens Act (see paragraph 30 below).

      On 23 September 1992 the First Division (Erster Senat) of the

Federal Constitutional Court gave judgment (Reports of the Decisions

of the Federal Constitutional Court, BVerfGE, vol. 87, pp. 114-51).

      It held that, pursuant to the transitional provisions of

section 16 of the Act, rent control continued to apply during the

period for which former fixed-term leases had been extended.

      The Federal Constitutional Court held that section 16 (3) and the

first sentence of section 16 (4) of the Federal Allotment Gardens Act

were constitutional, but pointed out that section 16 (3) had to be

interpreted in a manner consistent with the Basic Law.  On the other

hand, it decided that the rent control provided for in the

first sentence of section 5 (1) of the Act was contrary to the

first sentence of Article 14 para. 1 of the Basic Law, in so far as it

concerned leases granted by private lessors, since it imposed an

excessive and disproportionate burden on lessors.

II.   Relevant domestic law

    A.     Substantive law

29.   Article 14 para. 1 of the Basic Law provides:

      "Property and the right of succession shall be guaranteed.  Their

      content and limits shall be laid down by law."

30.   The relevant provisions of the Federal Allotment Gardens Act of

28 February 1983, which came into force on 1 April 1983, are worded as

follows:

                             Section 5 (1)

      "The rent shall be not more than twice the rent for a lease

      granted in the same locality for a market garden producing fruit

      or vegetables, depending on the total area of the allotment.  The

      areas allocated to amenities for common use shall be taken into

      account when the amount payable in rent for each allotment is

      calculated."

                              Section 16

      "1.  Allotment leases which have not expired by the date of the

      entry into force of the present Act shall be governed by the

      present Act from the date of its entry into force.

      2.   Leases granted before the entry into force of the

      present Act in respect of allotments which, on the date of the

      Act's entry into force, are not 'permanent' gardens shall be

      deemed leases in respect of 'permanent' gardens where the owner

      of the land is the local authority.

      3.   Where the leases referred to in subsection 2 concern plots

      of land not owned by the local authority, they shall expire on

      31 March 1987 if they have been granted for a fixed term expiring

      before that date, otherwise they shall run for the term agreed.

      4.   Where, before expiry of the lease as provided for in

      subsection 3, the land occupied by an allotment garden has been

      designated in the land-use plan as land for 'permanent' allotment

      gardens, the lease shall be extended for an indefinite period.

      Where the local authority has decided, before 31 March 1987, to

      draw up a land-use plan with a view to designating the land to

      be used for 'permanent' allotment gardens and has made its

      decision public in accordance with the second paragraph of

      Article 2 para. 1 of the Town Planning Code (Baugesetzbuch), the

      lease shall be extended for four years with effect from the date

      of publication of that decision, the period between the date

      agreed for expiry of the lease and 31 March 1987 being taken into

      account.  The provisions relating to 'permanent' allotment

      gardens shall apply with effect from the date on which the

      land-use plan becomes final."

31.   Following the Federal Constitutional Court's judgment of

23 September 1992 a new law amending the Federal Allotment Gardens Act

(Bundeskleingartenänderungsgesetz) came into force on 1 April 1994.

32.   Section 5 (1) of this new law reads:

      "The rent shall be not more than four times the rent for a lease

      granted in the same locality for a market garden producing fruit

      or vegetables, depending on the total area of the allotment.  The

      areas allocated to amenities for common use shall be taken into

      account when the amount payable in rent for each allotment is

      calculated."

33.   The transitional provisions of the law in question provide that

in all cases where proceedings were pending on 1 November 1992 but

where there has been no final judgment fixing the amount of rent

payable, private lessors may retrospectively claim four times the rent

for a lease granted in the same locality for a market garden producing

fruit or vegetables, with effect from the first day of the month

following the commencement of the proceedings.

    B.     Procedural law

      1.   The Basic Law

34.   Article 100 para. 1 of the Basic Law provides as follows:

      "Where a court considers unconstitutional a law whose validity

      is relevant to its decision, the proceedings shall be stayed and

      the question submitted ... to the Federal Constitutional Court

      if the present Basic Law is considered to have been breached ..."

      2.   The Federal Constitutional Court Act

35.   The composition and functioning of the

Federal Constitutional Court are governed by the Federal Constitutional

Court Act (Gesetz über das Bundesverfassungsgericht).

36.   According to section 2 of the Act, the

Federal Constitutional Court is constituted in two divisions, each

composed of eight judges.

37.   Sections 80 to 82 concern review of constitutionality in

connection with a specific case (Konkrete Normenkontrolle), and are

worded as follows:

                              Section 80

      "1.  Where the requirements of Article 100 para. 1 of the

      Basic Law are met, a court shall apply directly to the

      Federal Constitutional Court for a decision.

      2.   In the reasons for its application the court must state in

      what respect its decision depends on the validity of the

      legislative provision in issue and what higher-ranking legal rule

      it is incompatible with.  The application must be accompanied by

      the file.

      3.   The application by the court shall be independent of any

      complaint by a party to the proceedings that the legislative

      provision in issue is null and void."

                              Section 81

      "The Federal Constitutional Court shall determine only the point

      of law."

                              Section 82

      "1.  The provisions of sections 77 to 79 shall apply

      mutatis mutandis.

      2.   The constitutional organs named in section 77 may join the

      proceedings at any stage.

      3.   The Federal Constitutional Court shall also give the

      parties to the proceedings before the court which has made the

      application the opportunity to state their views; it shall invite

      them to participate in the oral proceedings and shall permit the

      legal representatives present to address it.

      4.   The Federal Constitutional Court may ask the highest

      federal courts of justice or the highest Land courts to state:

      how and on the basis of what considerations they have hitherto

      interpreted the Basic Law with regard to the point in question;

      whether, and if so how, they have applied the legal provision in

      issue in previous cases; and what related points of law, in their

      opinion, remain to be determined.  It may also ask them for their

      views on a point of law that has a bearing on its decision.  The

      Federal Constitutional Court shall communicate these submissions

      to the bodies authorised to state their views."

38.   Sections 77 to 79, to which section 82 refers, provide:

                              Section 77

      "The Federal Constitutional Court must give the Bundestag, the

      Bundesrat, the Federal Government and in addition, where there

      are differences of opinion concerning the validity of

      federal law, the Land Governments or, where there are differences

      of opinion concerning the validity of a provision of Land law,

      the Parliament and Government of the Land in which that provision

      was promulgated, the opportunity to state their views [on the

      matter] within a specified period."

                              Section 78

      "Where the Federal Constitutional Court comes to the conclusion

      that a provision of federal law is incompatible with the

      Basic Law or that a provision of Land law is incompatible with

      the Basic Law or any other part of federal law, it shall declare

      that provision null and void.  Where further parts of the same

      statute are, for the same reasons, incompatible with the

      Basic Law or any other part of federal law, the

      Federal Constitutional Court may likewise declare them null and

      void."

                              Section 79

      "...

      2. In all other respects, subject to the provisions of

      section 95 (2) or a specific statutory provision, final decisions

      based on a rule declared null and void pursuant to section 78

      shall remain unaffected.  Such decisions shall not be enforceable

      ..."

PROCEEDINGS BEFORE THE COMMISSION

39.   Mr Pammel applied to the Commission on 15 August 1990.  Relying

on Article 6 para. 1 of the Convention (art. 6-1), he complained of the

length of the proceedings in the Federal Constitutional Court.

40.   On 10 January 1995 the Commission declared the application

(no. 17820/91) admissible.  In its report of 25 January 1996

(Article 31) (art. 31) it expressed the unanimous opinion that there

had been a violation of Article 6 para. 1 of the Convention (art. 6-1).

The full text of the Commission's opinion is reproduced as an annex to

this judgment (1).

_______________

Note by the Registrar

1.  For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1997-IV), but a copy of the Commission's report is obtainable

from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

41.   In their memorial the Government asked the Court to hold

      "that the right of the applicant under Article 6 para. 1 of the

      Convention (art. 6-1) to a decision within a reasonable time has

      not been violated".

42.   The applicant asked the Court

      "to hold that there has been a violation of Article 6 para. 1 of

      the Convention (art. 6-1) and that Germany must pay the applicant

      DEM 413,044.25 as compensation for pecuniary damage and

      DEM 80,950 for costs and expenses."

AS TO THE LAW

I.    ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION

      (art. 6-1)

43.   The applicant submitted that the length of the proceedings in the

Federal Constitutional Court had exceeded the reasonable time referred

to in Article 6 para. 1 of the Convention (art. 6-1), which provides:

      "In the determination of his civil rights and obligations ...,

      everyone is entitled to a ... hearing within a reasonable time

      by [a] ... tribunal ..."

44.   The Government contested this argument, whereas the Commission

accepted it.

45.   The Court must first determine whether Article 6 para. 1

(art. 6-1) is applicable.

    A.     Applicability of Article 6 para. 1 (art. 6-1)

46.   The Government submitted that there were substantial differences

between an individual complaint of unconstitutionality

(Verfassungsbeschwerde), as in the Süßmann case (see the Süßmann

v. Germany judgment of 16 September 1996, Reports of Judgments and

Decisions 1996-IV), and an objective review of the constitutionality

of legislation carried out in connection with an application for a

preliminary ruling, as in the present case.  Even though the

proceedings in the Federal Constitutional Court were linked to

proceedings relating to "civil rights and obligations", they had a

different purpose, since they concerned the constitutionality of

certain provisions of the Allotment Gardens Act.  To link a decision

given in response to an application for a preliminary ruling with

proceedings in the ordinary courts was to disregard the special

function of the Federal Constitutional Court and the specific features

of the type of procedure in question.  Moreover, in view of the

importance of such a decision, which had the force of law, the

Federal Constitutional Court could not be required to give judgment

within a precise time-limit.

47.   The applicant maintained that, according to the criteria

established by the Court's case-law, the applicability of Article 6

para. 1 of the Convention (art. 6-1) to the proceedings in issue was

not open to doubt.  There was evidently a very close link between

proceedings in the ordinary courts and a review of constitutionality

arising from those proceedings (Konkrete Normenkontrolle), where the

decision of the Federal Constitutional Court was always decisive for

the outcome.

48.   The Commission, which referred to the Court's case-law, also

concluded that Article 6 para. 1 (art. 6-1) was applicable to the

proceedings in question.

49.   As the Court stated in the Süßmann judgment, it is fully aware

of the special role and status of a constitutional court, which, in

those States that have made provision for a right of individual

petition, affords additional legal protection to citizens at national

level in respect of their fundamental rights guaranteed in the

Constitution (see the aforementioned Süßmann judgment, p. 1170,

para. 37).

50.   The Court observes that it has already had to consider on a

number of occasions the question of the applicability of Article 6

para. 1 (art. 6-1) to the proceedings before a constitutional court.

51.   In accordance with its established case-law on the question

(see, most recently, the Ruiz-Mateos v. Spain judgment of 23 June 1993,

Series A no. 262, p. 19, para. 35, and the aforementioned

Süßmann judgment, p. 1171, para. 39), the relevant criterion for

determining whether proceedings before a constitutional court should

be taken into account in order to establish whether the overall length

of proceedings was reasonable is the question whether the result of

those proceedings may influence the outcome of the proceedings in the

ordinary courts.

52.   A particular feature of the present case is that it concerns only

the length of the proceedings in the Federal Constitutional Court, as

in the Süßmann case, because before the Commission the applicant

complained of the length of those proceedings only (see paragraph 36

of the Commission's report).  On the other hand, the Süßmann case

concerned an individual constitutional appeal, whereas in this case the

Hamm Court of Appeal asked the Federal Constitutional Court to give a

ruling on the constitutionality of legislative provisions.  In that

respect it therefore more closely resembles the Ruiz-Mateos case

(see the aforementioned Ruiz-Mateos judgment, p. 12, para. 15, and

p. 14, para. 22).

53.   The Court reiterates that proceedings come within the scope of

Article 6 para. 1 (art. 6-1), even if they are conducted before a

constitutional court, where their outcome is decisive for civil rights

and obligations (see the aforementioned Süßmann judgment, p. 1171,

para. 41).

54.   In the present case the applicant had terminated the lease with

the Höxter town council and had sought a possession order against the

council and the Allotment Garden Association with a view to recovering

his land (see paragraphs 15 and 16 above).  The dispute before the

civil courts therefore concerned the applicant's right of property,

which is certainly a civil right within the meaning of Article 6

(art. 6) (see, inter alia, the Zander v. Sweden judgment of

25 November 1993, Series A no. 279-B, p. 40, para. 27).  Moreover, that

has not been disputed.

55.   The Hamm Court of Appeal subsequently referred the case to the

Federal Constitutional Court for a ruling on the constitutionality of

the impugned provisions of the Federal Allotment Gardens Act

(see paragraph 23 above).

56.   Under German law a court must stay proceedings and refer a case

to the Federal Constitutional Court if it considers a law whose

validity has a bearing on its decision to be unconstitutional

(Article 100 para. 1 of the Basic Law, see paragraph 34 above).  In the

reasons for its application it must state in what respect the outcome

of the proceedings before it depends on the validity of the legislative

provision in issue (section 80 (2) of the

Federal Constitutional Court Act, see paragraph 37 above).

57.   In the present case the proceedings in the

Federal Constitutional Court were therefore closely linked to those in

the civil courts; not only was the former's decision directly decisive

for the applicant's civil right, but in addition, as the proceedings

arose from an application for a preliminary ruling, the

Hamm Court of Appeal was obliged to wait for the

Federal Constitutional Court's decision before it could give judgment.

58.   It follows that Article 6 para. 1 (art. 6-1) is applicable to the

proceedings in issue.

    B.     Compliance with Article 6 para. 1 (art. 6-1)

      1. Period to be taken into consideration

59.   The period to be taken into consideration is only the time taken

for the proceedings in the Federal Constitutional Court, which began

on 26 June 1987 when the Hamm Court of Appeal made its application to

the Federal Constitutional Court and ended on 23 September 1992 when

the latter gave judgment.  It therefore lasted just under five years

and three months.

      2. Applicable criteria

60.   The reasonableness of the length of proceedings must be assessed

in the light of the circumstances of each case and having regard in

particular to the complexity of the case and the conduct of the parties

and the relevant authorities (see the aforementioned Süßmann judgment,

pp. 1172-73, para. 48).

           (a) Complexity of the case

61.   In the applicant's submission, the case was not particularly

complex; it would have sufficed for the Federal Constitutional Court

to transpose to the present case the reservations it had previously

expressed in a 1979 judgment about the constitutionality of the

provisions of the Federal Allotment Gardens Act establishing a

rent freeze (see paragraph 17 above).

62.   The Government maintained that the case was complex because after

the Federal Constitutional Court's 1979 judgment Parliament had

promulgated in 1983 an entirely new Allotment Gardens Act, thus

creating a new basis for legal issues relating thereto

(see paragraph 18 above).

63.   The Court, like the Commission, considers that the case was

undoubtedly complex.  The fact that the Federal Constitutional Court

decided of its own motion to extend the review of constitutionality to

another provision of the Allotment Gardens Act, ruling on that issue

in its judgment of 23 September 1992, in which it set out its reasons

at some length, attests to the legal difficulty of the issues raised.

The scope of its judgment thus went well beyond the present case.

Moreover, the Federal Constitutional Court had to obtain the

observations of various authorities before it gave its decision

(see paragraph 28 above).

           (b) Conduct of the applicant

64.   Like the Commission, the Court notes that the applicant was not

responsible for any delay to the proceedings.  Moreover, no assertion

to that effect was made by the Government.

           (c) Conduct of the Federal Constitutional Court

65.   Mr Pammel submitted that proceedings which had lasted five years

far exceeded a "reasonable time" within the meaning of Article 6

para. 1 of the Convention (art. 6-1) and that it was for the State to

ensure that the Federal Constitutional Court was not burdened with an

excessive caseload.  Furthermore, account should also be taken of the

fact that the Federal Court of Justice had referred a similar question

to the Federal Constitutional Court in connection with the

Probstmeier case (see paragraph 25 above) in 1985, that is two years

before the Hamm Court of Appeal.  Lastly, the issues raised affected

about one million tenants and some one hundred thousand private

lessors.

66.   The Government emphasised the Federal Constitutional Court's

excessive caseload since the end of the 1970s, which had obliged it to

deal with more urgent cases, of considerable political and social

importance, some of which concerned the after-effects of

German reunification.  Numerous efforts, they added, had already been

made to amend the Federal Constitutional Court Act and lighten the

Federal Constitutional Court's burden. However, the possibilities for

structural changes were objectively limited if the

Federal Constitutional Court were to preserve its role as guardian of

the Constitution and fundamental rights.

67.   In the Commission's view the length of the proceedings in the

present case had been excessive, particularly in view of the special

importance of the case for other landlords in the same situation.

68.   The Court observes that it has repeatedly held 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, including the obligation to hear cases

within a reasonable time (see the aforementioned Süßmann judgment,

p. 1174, para. 55).  Although this obligation cannot be construed in

the same way for a constitutional court as for an ordinary court, it

is for the European Court in the last instance to verify that it has

been complied with, having regard to the particular circumstances of

each case and the criteria laid down in its case-law.

69.   Moreover, a temporary backlog of court business does not entail

a Contracting State's international liability if it takes appropriate

remedial action with the requisite promptness (see the

Unión Alimentaria Sanders S.A. v. Spain judgment of 7 July 1989,

Series A no. 157, p. 15, para. 40).  However, according to the Court's

established case-law, a chronic overload, like the one the

Federal Constitutional Court has laboured under since the end of the

1970s, cannot justify an excessive length of proceedings.

70.   In the present case the Hamm Court of Appeal applied to the

Federal Constitutional Court for a ruling in June 1987 and the

proceedings remained pending there for more than five years

(see paragraphs 24 and 28 above).

71.   Unlike the position in the Süßmann case, German reunification can

have played only a secondary role in the present case because when the

reunification treaty was signed, on 3 October 1990, the Pammel case had

been pending in the Federal Constitutional Court for more than

three years.

      Moreover, the Federal Court of Justice had already submitted the

same question to the Federal Constitutional Court in connection with

the Probstmeier case (see paragraph 25 above) in May 1985, that is

two years before the Hamm Court of Appeal.

72.   Accordingly, despite the complexity of the case, the length of

the constitutional proceedings cannot satisfy the reasonable time

requirement laid down in Article 6 para. 1 of the Convention

(art. 6-1).

           (d) Conclusion

73.   In the light of all the circumstances of the case, the Court

concludes that the reasonable time required by Article 6 para. 1

(art. 6-1) was exceeded, and that the provision (art. 6-1) in question

was therefore breached in that respect.

II.   APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

74.   Under Article 50 of the Convention (art. 50),

      "If the Court finds that a decision or a measure taken by a legal

      authority or any other authority of a High Contracting Party is

      completely or partially in conflict with the obligations arising

      from the ... Convention, and if the internal law of the said

      Party allows only partial reparation to be made for the

      consequences of this decision or measure, the decision of the

      Court, shall, if necessary, afford just satisfaction to the

      injured party."

      A.   Pecuniary damage

75.   Mr Pammel sought compensation for pecuniary damage in the sum of

413,044.25 German marks (DEM), corresponding to the loss of rent for

the period from 1977 to 1993 and loss of interest for the period from

1984 to 1996.  He asserted that the length of the proceedings in the

Federal Constitutional Court had prevented him from applying to the

civil courts at the appropriate time for a rent increase, as he was

entitled to do under the transitional provisions of the new

Allotment Gardens Act 1994 (see paragraph 33 above).

76.   The Government maintained that there was no causal connection

between any violation which might be found on account of the length of

the proceedings and the alleged pecuniary loss.  The proceedings in the

Hamm Court of Appeal concerned only Mr Pammel's application for a

possession order against the tenants, not a request for the rent to be

increased (see paragraphs 16-23 above).  That was why only the question

of the constitutionality of section 16 of the

Federal Allotment Gardens Act, relating to the duration of leases, had

been referred to the Federal Constitutional Court (see paragraph 23

above).  Furthermore, there was no causal connection either between the

Hamm Court of Appeal's initial application for a preliminary ruling and

the fact that the Federal Constitutional Court extended the review of

constitutionality of its own motion or between the latter's judgment

and the promulgation of a new law enabling private lessors to obtain

higher rents retrospectively (see paragraph 33 above).

77.   The Delegate of the Commission did not exclude the possibility

that the excessive length of the proceedings could have caused the

applicant pecuniary loss and asked the Court to award him financial

compensation on an equitable basis.

78.   The Court notes that in choosing to extend the review of

constitutionality to section 5 of the Federal Allotment Gardens Act the

Federal Constitutional Court must have considered that the provisions

concerning the duration of leases and those concerning rent levels were

linked.

      Even though Parliament enjoyed a measure of discretion over

details (Gestaltungsbefugnis) as regards promulgation of the new law

following the Federal Constitutional Court's judgment, the Court

considers it reasonable to conclude that, as a result of the delay, in

breach of Article 6 para. 1 (art. 6-1), found in the present judgment,

the applicant suffered a loss of opportunities which warrants an award

of just satisfaction in respect of pecuniary damage (see, in

particular, mutatis mutandis, the Martins Moreira v. Portugal judgment

of 26 October 1988, Series A no. 143, pp. 22-23, para. 65, and the

Silva Pontes v. Portugal judgment of 23 March 1994, Series A no. 286-A,

p. 16, para. 46).

      The damage sustained can only consist in the loss of interest,

given that the new Federal Allotment Gardens Act of 1994 gave the

applicant the right to claim a higher rent retrospectively

(see paragraph 33 above), and cannot be precisely calculated.

Assessing it as a whole and on an equitable basis, as required by

Article 50 (art. 50), the Court awards Mr Pammel compensation in the

sum of DEM 15,000.

      B.   Costs and expenses

79.   The applicant further claimed reimbursement of his costs before

the domestic courts and the Commission between 1985 and 1996, which he

put at DEM 60,000.  For the proceedings before the Court he claimed

DEM 20,950 for his lawyer's fees, calculated on the basis of the value

of the subject matter, in accordance with the regulations on lawyers'

fees (Bundesrechtsanwaltsgebührenordnung - BRAGO) applicable in

Germany.

80.   The Government argued that the sums claimed were excessive as

regards both the costs incurred by the applicant himself and his

lawyer's fees.  In addition, the amount claimed for the latter was

unfounded because it was based on pecuniary damage which had not been

established.

81.   The Delegate of the Commission submitted that the amounts claimed

were in principle justified.

82.   According to its settled case-law, the Court will award costs and

expenses only in so far as these relate to the violation found and to

the extent to which they have been actually and necessarily incurred

and are reasonable as to quantum (see, inter alia, the

Schouten and Meldrum v. the Netherlands judgment of 9 December 1994,

Series A no. 304, pp. 28-29, para. 78).

      In that respect it considers the amounts claimed by the applicant

excessive, especially because it does not appear that the costs for the

domestic proceedings were incurred in order to prevent or secure

redress for the violation of the Convention.

      With regard to lawyers' fees, the Court reiterates that it does

not consider itself bound by domestic scales and practices, although

it may derive some assistance from them.

      Making an assessment on an equitable basis, the Court awards the

applicant the overall sum of DEM 10,000, together with any

value-added tax (VAT) that may be chargeable.

      C.   Default interest

83.   According to the information available to the Court, the

statutory rate of interest applicable in Germany at the date of

adoption of the present judgment is 4% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.    Holds that Article 6 para. 1 of the Convention (art. 6-1) is

      applicable in the case;

2.    Holds that there has been a breach of Article 6 para. 1

      (art. 6-1);

3.    Holds that the respondent State is to pay the applicant, within

      three months, 15,000 (fifteen thousand) German marks for

      pecuniary damage and 10,000 (ten thousand) German marks, together

      with any VAT that may be chargeable, for costs and expenses;

4.    Holds that simple interest at an annual rate of 4% shall be

      payable from the expiry of the above-mentioned three months until

      settlement;

5.    Dismisses the remainder of the claim for just justification.

      Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 1 July 1997.

Signed: Rolv RYSSDAL

        President

Signed: Herbert PETZOLD

        Registrar

      In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the concurring

opinion of Mr Foighel is annexed to this judgment.

Initialled: R. R.

Initialled: H. P.

                  CONCURRING OPINION OF JUDGE FOIGHEL

      The applicable criteria for evaluating the reasonableness of the

length of proceedings for the purposes of Article 6 para. 1 (art. 6-1)

are clearly stated in paragraph 60, where the Court says that

reasonableness must be "assessed in the light of the circumstances of

each case and having regard in particular to the complexity of the case

and the conduct of the parties and the relevant authorities".

      This is further developed in paragraph 68, where it is stated

that the obligation in Article 6 para. 1 (art. 6-1) "... cannot be

construed in the same way for a constitutional court as for an

ordinary court ..."

      I find this formulation unfortunate.  While it is obvious that

some constitutional cases may be more complex than some

non-constitutional cases, the mere fact that a case is heard by a

constitutional court cannot by itself change the criteria mentioned in

paragraph 60.  This is further underlined by the fact that in some of

the member States there is no Constitutional Court.

      However, the majority have given me to understand that the

formulation in paragraph 68 is not intended to change or add anything

to the Court's long-standing jurisprudence.

 

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