AS TO THE ADMISSIBILITY OF
Application No. 17820/91
by F.W.P.
against Germany
The European Commission of Human Rights sitting in private on
10 January 1995, the following members being present:
MM. H. DANELIUS, Acting President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
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
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 August 1990 by
F. W. P. against Germany and registered on 19 February 1991 under file
No. 17820/91;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 December 1991 and the observations in reply submitted by the
applicant on 18 March 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1933 and living in
Hanover.
The facts of the present case, as submitted by the parties, may
be summarised as follows:
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.
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.
A new Allotment Garden Act (Bundeskleingartengesetz) entered into
force on 28 February 1983 and the civil proceedings were resumed at the
applicant's request on 17 March 1983.
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.
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 surety (Kaution) of
2,000,000 DM.
The applicant's request to suspend the proceedings and submit the
question whether or not certain provisions of the new Allotment Garden
Act were in conformity with the Basic Law (Grundgesetz) was not granted
by the Regional Court.
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
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.
On 26 June 1987 the case was submitted to the Federal
Constitutional Court.
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 reunification, a decision on the
constitutionality of the Allotment Garden Act could not be expected
before 1991. On 23 September 1992 the Federal Constitutional Court
gave judgment in the matter finding that Section 5 para. 1, first
sentence, of the Act in question was not compatible with Article 14
para. 1, first sentence, of the Constitution (Grundgesetz).
Subsequently the Court of Appeal resumed the proceedings and has
not yet given a judgment.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 August 1990 and registered
on 19 February 1991.
On 2 July 1991 the Commission decided to communicate the
application to the respondent Government. It also decided not to refer
the case to a Chamber, and to invite the parties to submit written
observations on admissibility and merits.
The Government's observations were submitted by letter dated
16 December 1991 and the applicant's reply by letter of 18 March 1992.
On 16 May 1992 the Commission decided to adjourn the proceedings
pending the outcome of the Ruiz Mateos case before the European Court
of Human Rights. Judgment in that case was given on 23 June 1993
(Eur. Court H.R., Ruiz Mateos judgment of 23 June 1993, Series A
no. 262).
On 10 January 1994 the Commission decided to invite the parties
to submit further written observations on admissibility and merits, in
the light of the Ruiz Mateos judgment. The Government submitted
further observations on 21 February 1994 and the applicant replied on
18 March 1994.
COMPLAINTS
Invoking Article 6 para. 1 of the Convention, the applicant
complains of the length of the proceedings.
THE LAW
The applicant complains of the length of civil proceedings which
he instituted on 23 May 1980 and which are still pending on appeal.
He invokes Article 6 para. 1 (Art. 6-1) of the Convention, the relevant
part of which reads as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
It is uncontested that the civil proceedings in the present case
concern the determination of a civil right.
The proceedings were prolonged by the necessity to have the
compatibility of the applicable legislative provisions with
constitutional law determined by the Federal Constitutional Court. The
period in question, for the purpose of the Commission's examination
under Article 6 (Art. 6) of the Convention, therefore amounts already
to more than fourteen years (c.f. Eur. Court H.R., Ruiz Mateos judgment
of 23 June 1993, Series A no. 262, pp. 19-20, paras. 33-37).
After conducting a preliminary examination of the facts and the
submissions of the parties, the Commission notes that according to the
Federal Government's submissions the Federal Constitutional Court had
initially planned to give a decision in the present matter towards the
end of 1990 while in consequence of German reunification it had become
necessary to give precedence to more urgent cases.
The Commission finds, however, that the complaint on the length
of the proceedings raises complex factual and legal issues which
require an examination of the merits.
The Commission concludes, therefore, that the application is not
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring the
application inadmissible have been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H.C. Krüger) (H. DANELIUS)
Full & Egal Universal Law Academy