FIFTH SECTION

CASE OF JESSE v. GERMANY

(Application no. 10053/08)

JUDGMENT

STRASBOURG

22 December 2009

This judgment is final but it may be subject to editorial revision.

In the case of Jesse v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Karel Jungwiert, President,
	Mark Villiger,
	Isabelle Berro-Lefèvre, judges,
and Stephen PhillipsSection Registrar,
Having deliberated in private on 1 December 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two German nationals, Mr Klaus Peter Jesse and Mrs Sonja Jesse (“the applicants”), on 24 February 2008.
2.  The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
3.  On  the President of the Fifth Section decided to give notice of the application to the Government. The Federal Republic of Germany having accepted the provisional application of the provisions of Protocol 14 governing the power of three judge committees to decide on cases in which there is well-established case-law, it was decided to assign the application to a Committee. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicants were both born in 1952 and live in Gießen.
5.  The facts of the case, as submitted by the parties, may be summarised as follows.
A. Preceding administrative proceedings
6.  In September 1997 the applicants and their neighbour filed a request with the Gießen administrative authorities (“the administration”) seeking permission to cut down their neighbour's tree which, according to an expert opinion obtained by the applicants, was causing damage to their house.
7.  On 19 November 1997 the administration rejected this request. 
On 9 March 1998, on the applicants' administrative appeal, the administration granted permission to cut down the tree on the ground that they could not exclude the possibility that the damage to the house had been caused by the tree.
8.  Subsequently, the applicants' neighbour refused to cut down the tree.
B. Proceedings before the Gießen Regional Court
9.  In August 1998 the applicants requested the Gießen Regional Court to order their neighbour to cut down the tree.
10.  On 23 November 1998, following submissions by the defendant, who also presented an expert report, the court decided to obtain an expert opinion from a Dr Str. On 30 January 1999 Dr Str. submitted his report.
11.  On 3 May 1999, following a hearing, the Gießen Regional Court decided that the applicants' neighbour had to cut down the tree or take other measures to prevent the earth from drying out.
C. Proceedings before the Frankfurt/Main Court of Appeal
12.  On 29 June 1999 the applicants' neighbour appealed. She also submitted another expert opinion.
13.  On 28 July 1999 the Frankfurt/Main Court of Appeal, on provision of a security by the neighbour, stayed the proceedings for enforcement of the first-instance judgment. Subsequently, the case was transferred to a single judge.
14.  On 9 August 1999 the court scheduled a hearing for 12 November 1999. That day it decided to obtain an expert opinion. 
On 10 January 2000 it commissioned Professor K., an expert on construction matters.
15.  On 11 January 2000 the applicants lodged a subsequent appeal (Anschlussberufung).
16.  On 2 February 2000 the court amended its decision regarding the taking of evidence. Subsequently, it also requested a further advance. 
On 26 March 2000 the applicants paid the requisite advance. A few days later they questioned the expert's qualification. On 26 April 2000 the court sent the files to the expert.
17.  On 25 August 2000, following comments made by the expert about the applicants' objections against him, the court mandated Professor K. to proceed with the report. On 22 September 2000 Professor K. informed the court about the cost of his services (which amounted to about 
25,000 euros (EUR)).
18.  In November 2000 the court requested the files from the expert and on 9 February 2001, on appeal by the defendant, it quashed a decision of the Gießen Regional Court concerning the enforcement proceedings.
19.  On 23 February 2001 the court proposed to the applicants that, in view of the exceptionally high costs claimed by Professor K., evidence should be taken by other means and proposed a Dr S., a landscaping expert.
20.  On 12 March 2001 the applicants opposed the proposal since, in their view, Professor K.'s report was indispensable. They also opposed the choice of Dr S. on the grounds that he had been proposed by the defendant, knew the defendant's son and it could be assumed that he had been talking with him about the case.
21.  At the subsequent hearing on 20 April 2001 the applicants requested Dr S. to declare that he did not have any personal ties with the defendant or her son and had not dealt with the case before. On 29 June 2001, following this declaration by Dr S., the court commissioned Dr S. to provide an expert opinion.
22.  On 4 November 2001 the court asked the applicants to comment on a statement by Dr S. dated 6 August 2001. In December 2001 the expert requested a further advance. On 11 July 2002 he submitted his report. 
He came to the conclusion that the tree had not caused the damage to the house.
23.  On 29 August 2002, following the applicants' submissions, the court asked Dr S. and the first-instance expert, on condition of the payment of a further advance, to explain and supplement their reports. In October 2002 it amended its decision; in November 2002 it requested a further advance. 
On 20 January 2003 it transferred the files to Dr S.
24.  In April 2003 the court requested a further advance of EUR 500 from both parties. On 1 August 2003, at the request of the applicants, it further amended the order regarding the taking of evidence. 
On 29 August 2003 the defendant paid the advance. The court then requested the expert to continue with his report.
25.  In June 2004 Dr S. submitted his supplementary report. The court then transferred the files to the parties for further submissions.
26.  On 23 June 2004 the applicants requested the court to transfer the case from the single judge to a bench.
27.  On 2 September 2004 the court scheduled a hearing for 6 October 2004. It later had to be postponed to 3 November 2004 owing to the absence of the parties' legal counsels. At the hearing, the court 
(again composed of three judges) established that a report by a construction expert was necessary in order to reach a decision. It also encouraged the parties to reach a friendly settlement in view of the high costs claimed by Professor K. None of the experts were summoned.
28.  On 22 December 2004 the court decided that, in view of the additional submissions, further evidence should be obtained by Dr S. as regards the position of the roots of the tree. It also requested an advance of EUR 2,000.
29.  In February 2005 the applicants asked the court to amend this decision. This however was rejected in March 2005 and again later on a renewed request. In April 2005 the court confirmed that the applicants had already paid the advance (requested again in March) on 5 January 2005.
30.  On 19 October 2005 a local inspection took place.
31.  By a letter dated 21 January 2006 the applicants lodged a constitutional complaint on account of the length of the proceedings. 
On 9 February 2006 the Federal Constitutional Court refused to accept the constitutional complaint for adjudication. It found that there was no indication of a violation of the applicants' rights.
32.  On 20 March 2006 the Court of Appeal requested another advance of EUR 28,500. In June 2006 it again refused to amend its decision regarding the taking of evidence; also in June 2006 the applicants paid the advance.
33.  On 10 October 2006 the expert informed the parties that the local inspection (which required free access to the applicants' cellar) should take place on 9 November 2006. At the applicants' request, it was postponed to 22 January 2007.
34.  On 20 February 2007 the expert submitted an interim report; 
on 12 July 2007 he submitted his final report.
35.  On 14 September 2007 the court scheduled the hearing. 
On 19 December 2007 the Frankfurt/Main Court of Appeal ordered the neighbour to cut down the tree.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
36.  The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
37.  The Government, even though they conceded that the overall duration of the proceedings was particularly long (and admitted that periods of between 9 weeks and 12 months were attributable to the national authorities), contested that argument. They adduced in particular that the case was factually complex, that the dispute between the parties had been conducted acrimoniously and that the proceedings were protracted primarily by the applicants' opposition to the appointed experts and the numerous submissions of both parties, which required decisions to be amended and also resulted in the repeated need to request a further advance.
A.  Admissibility
38.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1. The period to be taken into consideration
39.  The applicants argued that the administrative proceedings concerning permission to cut down the tree were a precondition for the civil proceedings and were therefore also to be taken into consideration. 
The Government contested this view.
40.  Court finds that, even though the applicants reasonably first obtained the administrative permission to cut down the tree, these proceedings nonetheless were not, in the strict sense, a precondition for the introduction of the claim with the civil courts, but a different set of proceedings which would have had to be further pursued before the administrative courts. The proceedings to be taken into consideration therefore began in August 1998 when the applicants lodged their claim with the Gießen Regional Court. The proceedings ended on 19 December 2007 when the Frankfurt/Main Court of Appeal decided in the applicants' favour. The proceedings thus lasted for about nine years and four months at two levels of jurisdiction.
2. The reasonableness of the length of the proceedings
41.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
42.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case 
(see Frydlender, cited above).
43.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 
In particular, while noting that the case was of a certain complexity and that the applicants caused delays by challenging both experts named, the Court cannot ignore that the case was pending for eight and a half years before the Frankfurt/Main Court of Appeal alone. It finds that this court failed to prosecute the proceedings diligently – in particular, it never set the experts any time-limits or enquired about the state of the reports – and that the Government did not submit any convincing reasons justifying their argument that the repeated requests for further advances had been unavoidable.
44.  Having regard to its case-law on the subject, the Court therefore considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
45.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
46.  The applicants claimed 1,177.92 euros (EUR) in respect of pecuniary and EUR 4,000 in respect of non-pecuniary damage. As regards the pecuniary damage, they submitted that, in 1999, as security for the preliminary enforcement of the first-instance judgment, they had been required to provide a bank guarantee which was only returned in 2007 and caused them to incur yearly fees of EUR 294.48. As documentary evidence, they submitted this guarantee; they also informed the Court that they had lodged a claim with a national court to reclaim those costs from their neighbour.
47.  The Government did not express an opinion on the pecuniary damage claimed but contested the claim for non-pecuniary damage.
48.  As regards the special fees claimed, the Court finds that, irrespective of the fact that such a claim is apparently still pending before a national court, the applicants, who merely submitted the bank guarantee, have not sufficiently substantiated that they actually incurred the amount claimed, or that the failure of the applicants' neighbour to return the bank guarantee had been caused by the length of the proceedings and was attributable to the State. On the other hand, the Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards them the full sum claimed.
B.  Costs and expenses
49.  The applicants also sought EUR 1,770.86, corresponding to the fees of their lawyer mandated in 2005 in the proceedings before the Frankfurt/Main Court of Appeal. Enclosing a corresponding bill dated 17 February 2005, they submitted that, had the proceedings been concluded within four or five years, they would not have had to change their legal counsel.
50.  In the Government's view, the costs for the change of their legal counsel could not be claimed since the applicants had not demonstrated why a change of legal counsel had been necessary.
51.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court does not discern a causal link between the violation found and the pecuniary damage alleged in respect of the change of the legal counsel; it therefore rejects this claim. As the applicants failed to submit a claim for costs and expenses incurred in the proceedings before this Court, the Court does not make an award under this head either.
C.  Default interest
52.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint concerning the excessive length of the proceedings admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicants, within three months, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 22 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Karel Jungwiert
	Deputy Registrar	President