AS TO THE ADMISSIBILITY OF
Application No. 30470/96
by Manfred and Margot ZIPPEL
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 January 1996 by
Manfred and Margot ZIPPEL against Germany and registered on
15 March 1996 under file No. 30470/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, born in 1928 and 1935, are German nationals and
resident at Syburg. They are a married couple.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
In November 1977 the applicants bought a moated castle at Syberg.
In August 1978 the applicants filed an action against the Bergen
Municipality, claiming compensation for damages as well as the clearing
from mud and refilling of two ponds ('Gutzenweiher' and 'Schloßweiher')
with a view to starting pisciculture. They submitted that various
highly poisonous agents were flowing from the municipal sewage
treatment plant into the watercourses feeding their ponds.
In February 1980 the Ansbach Regional Court (Landgericht)
dismissed the action. The Court found that the 'Gutzenweiher' had
silted up a long time ago and that the 'Schloßweiher', next to the
castle, was needed as a water reserve in case of fire and was
inappropriate for pisciculture due to the lack of maintenance by the
previous owners of the castle.
In February 1982 the Nürnberg Court of Appeal (Oberlandesgericht)
dismissed the applicants' appeal (Berufung) to the extent that the
compensation claims were concerned and, amending the first instance
judgment, declared that the civil courts had no jurisdiction as far as
their further claims were concerned. This part of the action was
transferred to the Ansbach Administrative Court (Verwaltungsgericht).
On 17 September 1986 the Ansbach Administrative Court dismissed
the applicants' action. The Court found that the applicants had no
claims regarding the 'Gutzenweiher' which had silted up some fifty
years ago. Moreover, as regards the 'Schloßweiher', the applicants
themselves were responsible for maintenance under the relevant
provisions of the Bavarian Water Act (Wassergesetz). The applicants'
submissions concerning the proper functioning of the municipal sewage
treatment plant were irrelevant to the issue of clearing the pond from
mud, but could only oblige the authorities to take general security
measures. The Court dismissed the applicants' request to submit their
case to the European Court of Justice for a preliminary ruling.
On 18 May 1993 the Bavarian Administrative Court of Appeal
(Verwaltungsgerichtshof) dismissed the applicants' appeal, which had
been extended to various further claims. The extension was admitted
as far as it concerned requests for protective measures at the sewage
treatment plant, for removal of various agents having penetrated the
walls of the castle via the 'Schloßweiher', as well as for demolition
and reconstruction of their castle at another place. The Court of
Appeal confirmed the findings of the Administrative Court that the
applicants had no claims under the Bavarian Water Act. Moreover, the
municipal sewage treatment plant had been licensed in August 1978, as
amended in 1983. In December 1977, the project had been published in
the local gazette, together with information as to the remedies under
the Water Act. However, neither the applicants nor the previous owners
of the castle had availed themselves of these remedies, and the licence
was, therefore, a final (bestandskräftig) administrative decision.
There was nothing to show that the licence was null and void.
Moreover, and this had not been in dispute between the parties, the
conditions fixed in the said licence, in particular on the limits of
feeding permissible syphoning, had been respected. Any complaints that
the sewage treatment plant was not at the latest state of engineering
would have to be raised in proceedings with the competent authorities
under the Water Act.
On 18 February 1994 the Federal Administrative Court
(Bundesverwaltungsgericht) dismissed the applicants' request for leave
to appeal on points of law (Beschwerde über die Nichtzulassung der
Revision).
The applicants thereupon lodged constitutional complaints
(Verfassungsbeschwerden) both with the Federal Constitutional Court
(Bundesverfassungsgericht) and the Bavarian Constitutional Court. The
applicants complained that the respective court decisions violated
their rights to life and property and also disregarded legal provisions
emanating from the European Communities, and that the proceedings
concerned had been unfair.
On 25 April 1994 the Federal Constitutional Court refused to
entertain their constitutional complaint.
On 20 July 1995 the Bavarian Constitutional Court, in a detailed
decision, dismissed their constitutional complaint.
COMPLAINTS
1. The applicants complain about the German court decisions
permitting the continued poisoning of the ponds and moats surrounding
their castle. They submit that they cannot, therefore, use their
property for the envisaged professional purposes and that they run
health risks if they continue to live there. They invoke Articles 8
and 14 of the Convention and Article 1 of Protocol No. 1.
2. The applicants further complain under Article 6 about the alleged
unfairness of the proceedings concerned. They submit in particular
that they were not duly heard and that the courts disregarded parts of
their submissions.
3. The applicants also complain under Article 6 that the Bavarian
Constitutional Court did not hold a public hearing.
4. The applicants finally complain about the length of the
proceedings at issue.
THE LAW
1. The applicants complain about the German court decisions
permitting the continued poisoning of the ponds and moats surrounding
their castle. They submit that they cannot, therefore, use their
property for the envisaged professional purposes and that they run
health risks if they continue to live there. They invoke in particular
Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1
(P1-1).
Article 8 (Art. 8) of the Convention provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and
is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others."
Article 1 of Protocol No. 1 (P1-1) reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission recalls that severe environmental pollution may
affect individuals' well-being and prevent them from enjoying their
homes in such a way as to affect their private and family life
adversely. Whether the question is analysed in terms of a positive
duty on the State - to take reasonable and appropriate measures to
secure the applicant's rights under paragraph 1 of Article 8 (Art. 8-1)
- or in terms of an "interference by a public authority" to be
justified in accordance with paragraph 2, the applicable principles are
broadly similar. In both contexts regard must be had to the fair
balance that has to be struck between the competing interests of the
individual and of the community as a whole, and in any case the State
enjoys a certain margin of appreciation. Furthermore, even in relation
to the positive obligations flowing from the first paragraph of Article
8 (Art. 8), in striking the required balance the aims mentioned in the
second paragraph may be of a certain relevance (cf. Eur. Court HR,
López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C,
pp. 54-55, para. 51). Similar considerations may apply with regard to
the protection of property rights under Article 1 of Protocol No. 1
(P1-1).
a. However, according to Article 26 (Art. 26) of the Convention, the
Commission may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken.
As regards the applicants' complaints about the operation of the
communal sewage treatment plant, the Commission notes that this plant
was licensed in 1978, pursuant to the relevant provisions of the
Bavarian Water Act. The project had been previously published,
together with information on the legal remedies. The applicants failed
to avail themselves of these legal remedies. The Commission considers
that the applicants, having bought the castle in November 1977, could
not reasonably have been unaware of important local building projects,
as published in the local gazette (cf., mutatis mutandis, Eur. Court
HR, Allan Jacobsson v. Sweden judgment of 25 October 1985, Series A
no. 163, p. 18, paras. 59-61). In this context, the proceedings for
compensation and clearance of the ponds instituted by the applicants
in 1978 cannot be regarded as an effective remedy, for the purposes of
Article 26 (Art. 26). Rather, the competent courts found that the
licence of 1978, as amended in 1983, was a final administrative
decision, i.e. no longer challengeable before the administrative
courts. Consequently, the applicants failed to exhaust the remedies
available to them under German law with regard to the operation of the
sewage treatment plant, as licensed in 1978.
To the extent that the applicants are to be understood as
complaining that the sewage treatment plant was not at the latest state
of engineering, they failed to institute proceedings with the competent
authorities under the Water Act.
The Commission further observes that, as stated in the reasons
of the decision of the Bavarian Administrative Court of Appeal, the
applicants had not disputed that the sewage treatment plant operated
in full compliance with the conditions fixed in the licence.
These aspects of the application are, therefore, inadmissible for
non-compliance with the conditions under Article 26 (Art. 26), and must
be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
b. The remainder of the applicants' complaints under this head
relates to the refusal by the Bergen Municipality, as confirmed by the
German administrative courts, to clear the 'Schloßweiher' and the
'Gunzenweiher' from mud and to refill them.
According to these decisions, one of the ponds had no longer
existed when the applicants acquired the estate. Moreover, as far as
the other pond was concerned, the applicants themselves were, under the
relevant legislation, responsible for any maintenance work, whereas the
operation of the sewage treatment plant did not constitute an unlawful
interference with their rights. In this respect, the German courts
referred to the binding licence granted for the operation of the plant
in question. However, for the reasons stated above, the Commission is
prevented from examining whether the granting of the licence as such
amounted to a breach of the applicants' rights under the Convention or
the Protocols thereto.
In these circumstances, the impugned decisions do not disclose
any appearance of a breach of the applicants' rights to respect for
their private and family life and their home, and their right to the
peaceful enjoyment of their possessions.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants further complain under Article 6 (Art. 6) about
the alleged unfairness of the proceedings concerned. They submit in
particular that they were not duly heard and that the courts
disregarded parts of their submissions.
Article 6 para. 1 (Art. 6-1) of the Convention provides inter
alia that "[i]n the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing within a
reasonable time by [a] ... tribunal".
a. Insofar as the applicants' complaints relate to the proceedings
concerning the grant of the licence in 1978, the Commission, referring
to its above findings, considers that the applicants failed to comply
with the conditions under Article 26 (Art. 26) of the Convention, and
that this part of the application must likewise be rejected under
Article 27 para. 3 (Art. 27-3).
b. As regards the civil court proceedings before the Ansbach
Regional Court and the Nürnberg Court of Appeal as well the
administrative court proceedings before the Ansbach Administrative
Court and the Bavarian Court of Appeal, the Commission finds no
indication that the applicants could not duly present their arguments
or that their submissions were disregarded by the courts. The
Commission notes in particular that the Bavarian Court of Appeal
largely admitted an extension of the applicants' claims in the course
of the appeal proceedings. The respective courts based their decisions
on a comprehensive reasoning and there is nothing to show that they
unduly disregarded any relevant procedural request. In this context,
the Commission recalls that Article 6 para. 1 (Art. 6-1) cannot be
understood to require a detailed answer to every argument that a
litigant may bring before the courts (Eur. Court HR, Ruiz Torija and
Hiro Balani v. Spain judgments of 9 December 1994, Series A nos. 303
A/B, p. 12, para. 29 and pp. 29-30, para. 27, respectively).
Considering all circumstances, there is no appearance of a breach
of the applicants' right to a fair hearing.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 26 par. 2 (Art. 26-2) of the
Convention.
3. The applicants also complain under Article 6 (Art. 6) that the
Bavarian Constitutional Court did not hold a public hearing.
The Commission observes that the applicants do not claim that
they requested the Constitutional Court to hold a public hearing in
their case. However, assuming that the applicants did not waive their
right to such a hearing, the Commission recalls that, provided a public
hearing has been held at first instance, the absence of such hearing
before a second or third instance may be justified by the special
features of the proceedings at issue. Thus, leave-to-appeal
proceedings and proceedings involving only questions of law, as opposed
to questions of fact, may comply with the requirements of Article 6
(Art. 6), although the appellant was not given an opportunity of being
heard in person by the appeal or cassation court. Even where courts
of appeal have jurisdiction to review cases both as to facts and as to
the law, Article 6 (Art. 6) does not always require a right to a public
hearing irrespective of the nature of the issue to be decided (cf.,
Eur. Court HR, Fejde v. Sweden judgment of 29 October 1991, Series A
no. 212-C, pp. 68-69, para. 31).
The Commission notes that the Bavarian Constitutional Court had
to decide upon a constitutional complaint, alleging the breach of the
applicants' rights under the Bavarian Constitution. These proceedings
did not involve any question which could not be adequately resolved on
the basis of the case-file. Considering the entirety of the
proceedings before the German courts and also the nature of issues
relevant in the applicants' case, the Bavarian Constitutional Court
could, as a matter of fair hearing, properly decide on their
constitutional complaints without having held a public hearing.
In these circumstances, the absence of a public hearing before
the Bavarian Constitutional Court does not disclose any indication of
a violation of Article 6 para. 1 (Art. 6-1).
It follows that this part of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicants finally complain about the length of the
proceedings at issue.
a. The applicants first lodged their action with the Ansbach
Regional Court in August 1978. Part of their action was referred to
the Ansbach Administrative Court in 1982. Their case was pending
before administrative courts until February 1994.
It is true that the applicants subsequently lodged constitutional
complaints both with the Bavarian Constitutional Court and the Federal
Constitutional Court. However, they failed to raise, in their
complaint submissions with both Constitutional Courts, the issue of the
allegedly excessive length of the preceding proceedings (No. 10785/84,
Dec. 18.7.86, D.R. 48, p. 102).
In this respect, the Commission recalls that the application of
the rule of exhaustion of domestic remedies must make due allowance for
the fact that it is being applied in the context of machinery for the
protection of human rights that the Contracting Parties have agreed to
set up. Accordingly, Article 26 (Art. 26) must be applied with some
degree of flexibility and without excessive formalism. However, it does
not require merely that applications should be made to the appropriate
domestic courts and that use should be made of remedies designed to
challenge decisions already given. It normally requires also that the
complaints intended to be made subsequently at Strasbourg should have
been made to those same courts, at least in substance and in compliance
with the formal requirements and time-limits laid down in domestic law
(cf. Eur. Court HR, Sadik Ahmet v. Greece judgment of 15 November 1996,
Reports 1996-V, No. 20, para. 30).
It follows that the applicants' complaint about the length of the
proceedings before the German civil and administrative courts must be
rejected under Article 27 para. 3, in conjunction with Article 26
(Art. 27-3+26), of the Convention.
b. The Commission notes that in the ensuing proceedings, the Federal
Constitutional Court rejected their constitutional complaint within two
months. In parallel proceedings, the Bavarian Constitutional Court
took a decision within about seventeen months. The applicants do not
particularly address the question of length at that stage of the
proceedings.
The Commission finds that no delay can be imputed to the Federal
Constitutional Court. Furthermore, considering the particular features
of proceedings before a constitutional court and given the fact that
it examined the applicants' complaints in detail, the length of the
proceedings before the Bavarian Constitutional Court did not exceed a
"reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1).
Consequently, there is no appearance of a breach of Article 6
(Art. 6) in this respect.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy