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FIFTH
SECTION
CASE OF KURT MÜLLER v. GERMANY
(Application
no. 36395/07)
JUDGMENT
STRASBOURG
25
February 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kurt Müller v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 2 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 36395/07) against the
Federal Republic of Germany lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a German national, Mr Kurt Müller
(“the applicant”), on 17 August 2007.
- The
applicant was represented by Ms E. Ch. Triebel, a lawyer practising
in Katzweiler. The German Government (“the
Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry
of Justice.
- On
11 March 2008 the Court
declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. It 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
1. Background to the case
- The
applicant was born in 1956 and lives in Binsfeld.
- The applicant’s aunt (V.) inherited a plot of
land with a barn in 1964. In 1967 the barn was converted for
residential use by a number of families. The building is close to the
runway of the Spangdahlem military airport, built in 1952.
2. Proceedings before the Trier Regional Court
- On 26 August 1994 V. brought an action against the
Federal Republic of Germany (“the defendant”) before the
Trier Regional Court. She claimed compensation for depreciation in
the value of her property due to the noise generated by the
Spangdahlem airport.
- On 30 September 1994 the Regional Court granted V. a
time-limit of three weeks to make further observations. On 21
December 1994 V. made her submissions.
- On 24 January 1995 the Regional Court requested V. to
make her observations on the defendant’s submissions within
four weeks.
On 18 April 1995 she submitted her observations and
on 24 April 1995 the defendant replied to them.
- On 17 January 1996 the Regional Court ordered V. to
comment on the question as to whether she had been entitled to bring
the proceedings in question (Aktivlegitimation) within a
time-limit of one month.
- On 22 September 1999 the Regional Court scheduled a
hearing and requested V. to comment on the defendant’s further
observations of 16 September 1999.
- On 18 November 1999 V.’s representative informed
the court that V. had died on 1 February 1996 and that the applicant
would continue her proceedings before the Regional Court as the
successor of the deceased.
- In an oral hearing of 23 November 1999 the court
adjourned the proceedings until 18 January 2000. The hearing
scheduled on the latter date was cancelled because one judge’s
post in the chamber of the
Regional Court had been abolished.
- On 15 August 2000 the Regional Court held an oral
hearing.
- By
a judgment of 5 December 2000 it ordered the defendant to grant the
applicant reasonable compensation for the depreciation in the value
of his property caused by the noise at the airport. The court relied
on the findings of several pilot judgments rendered on 6 May 1998 in
respect of other residents who owned property near the airport and
who had lodged actions for compensation in 1990. It pointed out that,
“in view of the long period during which the applicant and his
predecessor had patiently awaited the end of the pilot proceedings
(ten years), it had to be expected that the defendant would speedily
take the necessary measures to compensate for the depreciation of the
value of the property in question”.
3. Proceedings before the Koblenz Court of Appeal
- On
4 January 2001 the defendant appealed to the Koblenz Court of Appeal.
At the defendant’s request the Court of Appeal extended the
time-limit for the submission of its statement of grounds of
appeal to
8 May 2001. On 20 March 2001 the statement of
grounds of appeal was submitted to the court, which forwarded it to
the applicant, granting him a time-limit for submissions of 18 June
2001. On 28 May 2001 the applicant requested the court to dismiss the
appeal.
- On
11 June 2001 the Court of Appeal made a proposal for a friendly
settlement and invited the parties to comment on it by 27 July 2001.
On 15 August 2001 the defendant informed the court that it
preferred a clarification of the legal issues at stake to a
resolution by way of a friendly settlement. On 15 October 2001 the
defendant made further submissions. On 30 January 2002 it declared
that in principle it would be willing to reach a friendly settlement
on the basis of the court’s proposal of 11 June 2001 provided
that all plaintiffs (including those in the parallel proceedings)
gave their full consent to the proposal.
- On
23 March 2002 the applicant’s representative informed the court
that he had not received any statement from the applicant concerning
the settlement proposal. On 22 August 2002 the applicant informed the
court that he would be ready to accept the proposal under certain
circumstances.
- On
21 January 2003 the court informed the parties that it would
commission an expert report on the noise levels generated by the
airport and thereafter undertake a site inspection.
- On
24 February 2003 the court stayed the proceedings until regular
military aviation noise from the airport resumed, which was expected
in August 2003.
- On
16 December 2003 the Court of Appeal requested the defendant to
inform the court by 15 January 2004 as to whether normal military
flight activity had been resumed in the meantime. On 2 February 2004
the information was given.
- On
5 February 2004 the Court of Appeal scheduled a date for an oral
hearing and a site inspection of 30 June 2004.
- On
11 August 2004 the Court of Appeal ordered the commissioning of an
expert report. Following a court inquiry, the expert informed it on
23 November 2004 that he was still waiting for important
technical information from the American armed forces. On 4 April 2005
the expert submitted his report and the parties were invited to make
their comments by 24 May 2005.
- On
14 June 2005 the Court of Appeal scheduled a hearing for 28 September
2005.
- On
11 October 2005 the defendant submitted a proposal for a friendly
settlement. Due to the subsequent friendly settlement negotiations
between the parties the Court of Appeal postponed the hearing to
16
November 2005. However, on 8 November 2005 the defendant informed the
court that the negotiations had been unsuccessful.
- On
16 November 2005 the Court of Appeal declared that the defendant was
required to pay damages for the loss of value of the applicant’s
property. However, it amended the Regional Court’s judgment in
that it found that the depreciation in the value of the applicant’s
property should be calculated not on the basis of the building’s
status as a residential dwelling, but on its pre-1967 status, when it
was still a barn.
4. Proceedings before the Federal Court of Justice
- On
9 December 2005 the applicant requested the Federal Court of Justice
to grant him leave to appeal on points of law against the Court of
Appeal’s judgment and to extend the time-limit for the
submission of his statement of grounds by two months.
- On
9 March 2006 the applicant requested the court to fix the value of
the amount of his request for leave to appeal on points of law
(Beschwerdewert) at more than 20,000 euros (EUR) and to extend
the
time-limit for his statement of grounds until the court had
decided on his request for the value of the amount on appeal to be
fixed. The applicant lodged three further requests to extend the
above time-limit, up to
12 July 2006.
- On
18 July 2006 he submitted a private expert report and requested the
court to fix the value of his request for leave to appeal on points
of law at EUR 20,452. Between 3 August 2006 and 11 October 2006 he
requested three further extensions of the time-limit.
- In
the meantime, on 21 September 2006 the Federal Court of Justice had
fixed the value of the request for leave to appeal on points of law
at EUR 20,452.
- On
25 October 2006 the applicant submitted his statement of grounds and
the defendant made its submissions on 9 January 2007.
- On
15 February 2007 the Federal Court of Justice rejected the
applicant’s request as the matter at issue was not of
fundamental importance. On 21 February 2007 that decision was
served on the applicant’s lawyer.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant 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...”
- The
Court reiterates that in cases concerning the intervention of third
parties in civil proceedings the applicant can complain of the entire
length of the proceedings if he or she has declared an intention to
continue the proceedings as heir (see, inter alia, M.Ö.
v. Turkey, no. 26136/95, § 25,
19 May 2005, and
Cocchiarella v. Italy [GC], no. 64886/01, § 113,
ECHR 2006-). Accordingly, the period to be taken into
consideration began on 26 August 1994, when the applicant’s
predecessor lodged her action with the Trier Regional Court, and
ended on 21 February 2007, when the decision of the Federal Court of
Justice was served on the applicant. It thus lasted twelve years and
six months at three levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint 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
a. Submissions made before the Court
- The
applicant contested that he had been responsible for some delays to
the proceedings, referring to V.’s illness, the necessity to
administer her estate, the fact that the defendant had rejected the
friendly settlement proposal, that it had exerted pressure on him to
accept a disadvantageous settlement, and that construction works on
the airport had been aimed at its expansion.
- The
Government maintained that several questions of fact and law had to
be clarified which necessitated the commissioning of an expert report
and a site inspection. The Government emphasised that a period of
some six years and two months was attributable to the applicant’s
own conduct, as he had failed to inform the court of V.’s death
and his intention to pursue her proceedings. Moreover the applicant
had delayed in making his submissions and in submitting his comments
on the Court of Appeal’s friendly settlement proposal and his
statement of grounds with the Federal Court of Justice.
- As
to the conduct of the courts, the Government pointed out that the
Regional Court had failed to further the proceedings between 24 April
1995 and 17 January 1996 where it apparently awaited the outcome of
the pilot proceedings which were pending at the same time. A further
period of inactivity (between 4 January 2000 and 15 August 2000) was
due to the Regional Court being understaffed. The Court of Appeal
could not be blamed for the delays caused by the parties’
friendly settlement negotiations, the difficulties caused in respect
of the taking of evidence which had made it necessary to wait until
the regular military flight activity had been resumed and the
required information had been obtained from the U.S. armed forces.
Furthermore, the proceedings before the Court of Appeal were
influenced by the fact that numerous similar proceedings had
simultaneously been pending before the Court of Appeal.
b. The Court’s assessment
- 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 applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court observes that the applicant’s action claiming damages for
the depreciation of his property was of a certain complexity. Thus
the domestic courts had to establish whether and to what extent the
Federal Republic of Germany was responsible for the noise levels
generated by the military airport, which involved the commissioning
of an expert report and a site inspection. The Court also notes that
the taking of evidence was complicated by the construction works
carried out on the airport and the fact that information had to be
obtained from the U.S. military authorities.
- As
regards the conduct of the applicant and his predecessor, the Court
observes that V. delayed the proceedings in that she twice exceeded
the time-limits to submit her observations by two months. Moreover,
the proceedings came to a standstill when V. died. In this connection
it took the applicant three years and eight months to inform the
Regional Court about her death and his intention to pursue the
proceedings. The Court also notes that the applicant submitted his
comments on the Court of Appeal’s friendly settlement proposal
more than one year and one month after the court had requested him to
do so. Finally, on eight occasions during the proceedings before the
Federal Court of Justice he requested extensions of the
time-limits
to submit his statement of grounds, which contributed to delays of
ten months.
- Turning
to the conduct of the domestic courts, the Court notes that while the
Federal Court of Justice conducted the proceedings before it
speedily, they were pending for six years and three months before the
Regional Court and four years and ten months before the Court of
Appeal.
- The
Court observes that the length of the proceedings before the Regional
Court was mainly due to the fact that pilot proceedings in similar
cases were pending before the Court of Appeal. Thus, it observes that
the Regional Court remained inactive between 24 April 1995 and
17 January 1996. The Court reiterates that it might be reasonable
for national courts to await under certain circumstances the outcome
of parallel proceedings as a measure of procedural efficiency.
However, this decision must be proportionate to the particular
circumstances of the case
(see Klasen v. Germany, no.
75204/01, § 35, 5 October 2006, and
Stork v.
Germany, no. 38033/02, § 44, 13 July 2006). In this
connection the Court notes that numerous similar proceedings of other
neighbours had been pending before the domestic courts. These
precedents had been pending for nine years before the Court of Appeal
rendered its decisions. This duration of the proceedings casts doubts
as to whether the domestic courts had dealt with the precedents
expeditiously (see, by contrast, Klasen, cited above,
§
35) However, given that the applicant and his predecessor equally
failed to further the proceedings during that period (see paragraph
40 above), the Court considers that the domestic courts cannot alone
be held responsible for the delays occurred. Finally, the Court notes
that the Regional Court had to cancel a hearing due to organisational
problems, which resulted in a delay of seven months (see paragraph 12
above).
- Concerning
the conduct of the Court of Appeal, the Court agrees with the
Government that the Court of Appeal did make efforts between
11
June 2001 and 22 August 2002, albeit fruitlessly, to reconcile the
parties at their own request and to help them to settle their dispute
amicably.
The Court further notes that the Court of Appeal cannot
be blamed for the delays caused by the reconstruction of the airport
and the difficulties in obtaining the necessary information from the
U.S. authorities. However, it also notes that the Government did not
provide any information about the court’s inactivity between 22
August 2002 and 21 January 2003 and about why it took the court five
months to schedule the site inspection.
- Given
the considerable time that had already elapsed before the domestic
courts, the Court considers that the latter had a particular duty to
speed up the proceedings by adhering to a tight time schedule or by
setting (final) time-limits for the parties to ensure their swift
compliance with the court orders. As there is no indication that the
domestic courts made such additional efforts, the Court considers
that the domestic courts failed to conduct the applicant’s
proceedings with the required diligence.
- Therefore,
the Court concludes that despite the delays caused by the applicant’s
own conduct, the overall length of the proceedings of twelve years
and six months was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed EUR 241,168.20 in respect of pecuniary damage (EUR
154,595 as compensation for the depreciation of the value of his
property plus 7% interest (EUR 86,573.20) on that amount for the
Government’s refusal since 1 December 1998 to pay the requested
compensation. The applicant did not submit a claim for just
satisfaction in respect of non-pecuniary damage.
- The
Government contested the applicant’s claims for pecuniary
damages, arguing that they were not causally connected to the delay
in the proceedings.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
B. Costs and expenses
- The
applicant also claimed EUR 15,422.76 for court costs and lawyers’
fees incurred before the domestic courts.
- The
Government contested the claim. They maintained that these costs
would have also been incurred if there had been no violation of
Article 6 § 1 of the Convention.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers that the applicant has not established that the costs and
expenses claimed for the proceedings before the domestic courts were
incurred by him in order to seek prevention or rectification of the
specific violation caused by the excessive length of the proceedings.
However, seeing that in length of proceedings cases the protracted
examination of a case beyond a “reasonable time” involves
an increase in the applicants’ costs (see, among other
authorities,
Sürmeli v. Germany [GC], no. 75529/01,
§ 148, ECHR 2006 ...), it does not find it
unreasonable to award the applicant EUR 500.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 500 (five
hundred euros), plus any tax that may be chargeable to the applicant,
in respect of costs and expenses;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
