FIFTH SECTION
DECISION
Application no. 27627/03
by Ernst and Babette SCHMIDT
against Germany
The European Court of Human Rights (Fifth Section), sitting on 4 December 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert, appointed to sit in respect of Germany,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 20 August 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Ernst Schmidt and Mrs Babette Schmidt, are German nationals who were born in 1920 and 1931 respectively and live in Miremont, France. They are represented before the Court by Mr M. Mohr and Mr W. Bauer, lawyers practising in Würzburg, Germany. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
By submissions dated 11 March 1992, which reached the Würzburg Regional Court on 19 March 1992, the applicants brought an official liability action for payment of damages against the city of Marktbreit (no. 64 O 578/92). They claimed compensation for losses amounting to some 1.9 million Deutschmarks (DEM) incurred due to the authorities’ prohibition to enlarge and modernise their farm in order to keep and raise cattle properly.
On 16 February 1993, 8 March 1994 and 12 April 1994 the Würzburg Regional Court held oral hearings and questioned two witnesses.
On 31 July 1995 the court-appointed expert S. submitted his report on the extent of the damage sustained by the applicants due to the city’s urban development planning.
On 24 and 31 March 1998 the Regional Court heard three witnesses.
On 4 May 1999 the Regional Court decided to appoint G. as expert, the applicants having objected to expert S.’s further commissioning because of the fact that he was no longer officially appointed and sworn. The applicants then informed the court that they had had previous personal contacts with this expert. On 13 July 1999 the Regional Court therefore called for expert W. instead to give a new, complete expert opinion.
The expert subsequently made an inspection of the locality (Ortstermin), but never submitted a written expert report. The Regional Court therefore revoked the commissioning of expert W.
On 14 August 2002 the Regional Court, despite the applicants’ objections, appointed O. as expert on the defendant’s proposal. The applicants subsequently challenged the expert and the judges of the Regional Court on grounds of bias.
On 7 February 2003 the applicants lodged a complaint with the Federal Constitutional Court. They argued that the length of their proceedings before the Würzburg Regional Court was excessive.
On 7 March 2003 the Federal Constitutional Court, without giving reasons, refused to admit the applicants’ constitutional complaint.
On 27 October 2004 expert O. submitted his report.
The proceedings were still pending in the Würzburg Regional Court in September 2006.
COMPLAINT
The applicants complained under Article 6 § 1 of the Convention that the length of their official liability proceedings, which were pending in the Würzburg Regional Court since 1992, was excessive.
THE LAW
On 12 October 2006 the Court received a certified copy of the following declaration from the Government, signed by the latter on 18 September 2006 and by the applicants’ representative on 28 September 2006:
“The Federal Republic of Germany, represented by its Agent,
Dr. Almut Wittling-Vogel, Ministerialdirigentin, Federal Ministry of Justice, Mohrenstrasse 37, 10117 Berlin, and the applicants Ernst and Babette Schmidt, both represented by attorneys Dr. Mohr & Bauer, Franz-Ludwig-Str. 5, 97072 Würzburg, hereby conclude the following settlement to dispose of application no. 27627/03:
1. The Federal Republic of Germany shall undertake to pay the applicants a total sum of EUR 8,800 to discharge all claims relating to the above-mentioned application. The above-mentioned sum shall settle all conceivable claims against the Federal Republic of Germany and / or the Free State of Bavaria, notably including compensation for damages, costs and expenses, in connection with the length of the proceedings with the file no. 64 O 578/92, which may have arisen until the time of conclusion of the friendly settlement. The sum shall be payable within three months after the European Court of Human Rights has decided, due to the friendly settlement, to strike the case out of its list pursuant to Article 39 of the Convention.
2. The applicants, represented by attorneys Dr. Mohr & Bauer, hereby declare the above-mentioned application to be settled in its entirety. They agree that the case shall be struck out of the list by the Court. They shall waive any potential further claims against the Federal Republic of Germany and / or the Free State of Bavaria in connection with the facts underlying the application, to the extent that they are considered covered pursuant to no. 1 above.
3. The Government Agent of the Federal Republic of Germany shall undertake promptly to notify the European Court of Human Rights of this agreement.”
The Government applied for the application to be struck out of the Court’s list of cases in accordance with Article 37 § 1 (b) of the Convention.
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy