FIFTH SECTION

CASE OF KEMPE v. GERMANY

(Application no. 11811/10)

JUDGMENT

STRASBOURG

30 June 2011

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

In the case of Kempe v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Boštjan M. Zupančič, President,
	Mark Villiger,
	Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 7 June 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 11811/10) 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 two German nationals, Mr Richard Kempe and Mrs Gerlinde Kempe (“the applicants”), on 23 February 2010.
2.  The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
3.  On 13 July 2010 the President of the Fifth Section decided to communicate the complaint concerning the length of the proceedings to the Government. In accordance with Protocol 14, the application was assigned to a Committee of three Judges.
4.  The Government filed observations on the merits of the application (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5.  The applicants Mrs Gerlinde Kempe (“the first applicant” or “the applicant”) and Mr Richard Kempe (“the second applicant”) are a married couple and live in Berlin. They are born in 1947 and 1945 respectively. The first applicant owns a house in Berlin. The second applicant has a lifelong right of abode (Wohnungsrecht) in the top floor apartment of the said house.

6.  Following a fire in October 2005 the applicants notified the competent building authority of their intention to rebuild the top floor of the house and applied for the necessary construction permit on 19 October 2005. They started the construction works while the proceedings on the building permit were still under way.
7.  On 25 October 2005 the building authority prohibited the continuation of the construction works. The applicant objected and applied for interim measures. On 24 November 2005 the application was dismissed by the Berlin Administrative Court, confirmed on appeal by a decision of the Berlin Administrative Court of Appeal on 20 December 2005.
8.  On 24 January 2006 the building authority refused to issue a building permit for the reconstruction of the top floor. On 24 February 2006 the applicant lodged an objection.
9.  The applicants completed the reconstruction of the top floor and the second applicant started using the apartment together with his son and daughter-in-law.
10.  On 21 February 2006 the building authority issued a prohibition of use order (Nutzungsuntersagung). The applicant objected and applied for interim measures. On 21 April 2006 this application was dismissed by the Administrative Court, confirmed on appeal by a decision of the Berlin Administrative Court of Appeal of 23 August 2006.
11.  In October 2006 discussions between the applicant and the building authorities on the framework conditions for the possible grant of a building permit took place.
12.  In December 2006 as well as January and February 2007 the building authority threatened to initiate compulsory measures regarding the prohibition of use order. The applicant subsequently applied for a suspension of the enforcement of the order pending the outcome of the proceedings concerning the building permit. The second applicant, his son and daughter-in–law subsequently vacated the apartment.
13.  On 25 May 2007 the applicant brought an action for failure to act with the Berlin Administrative Court (file No. VG 19 A 159.07) since her objection against the refusal of the building permit lodged on 24 February 2006 had not been decided on and requested the grant of a building permit for the top floor apartment.
14.  In August 2007 the Administrative Court dismissed the application for a suspension of the enforcement of the prohibition of use order, confirmed on appeal by a decision of the Berlin Court of Appeal of 30 November 2007.
15.  On 14 April 2008 the applicant was informed that a date for an oral hearing in the proceedings regarding the building permit (file No. VG 19 A 159.07) could not yet be set because older proceedings had to be dealt with as a priority.
16.  On 31 May 2010 an oral hearing in the said proceedings was scheduled for 21 July 2010.
17.  Following the hearing, the Berlin Administrative Court dismissed the applicant's claim for the grant of a building permit by a judgment of 21 July 2010 (file No. VG 19 A 159.07). On 31 August 2010 she requested leave to appeal the decision with the Berlin Administrative Court of Appeal. The proceedings are still pending.
II. RELEVANT DOMESTIC LAW
18.  Section 75 of the Code of Administrative Court Procedure as far as relevant read as follows:

“If with regard to an objection ... it has not been decided on the merits within a suitable period without sufficient reason, the action shall be admissible ... The action may not be lodged prior to the expiry of three months after the lodging of the objection ..., unless a shorter period is required because of special circumstances of the case. ...”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
19.  The applicants complained that the length of the proceedings before the Berlin Administrative Court concerning the building permit 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...”
20.  The Government conceded that delays which were to a large extent attributable to the Berlin Administrative Court had occurred during the first instance proceedings. They had been due to the latter's particularly heavy workload as well as several inevitable changes of the judge rapporteur in the period from 2007 to 2010 which had further delayed the handling of this exceptionally complex case. They maintain that, on the contrary, the length of the preceding administrative appeal proceedings was mainly attributable to the applicant's conduct. It had been expedient on the part of the building authority to await the outcome of the parallel proceedings regarding the prohibition of use order before deciding on the applicant's objection against the refusal of the building permit. Furthermore, discussions on a friendly settlement in the administrative appeal proceedings regarding the building permit had taken place in October 2006. The building authority only realised that a settlement had failed when the applicant lodged his action for failure to act on 25 May 2007. The Government finally invoked that the applicant would have had the opportunity to lodge his action for failure to act on the part of the administrative authorities already as of June 2006 and could have thus accelerated the proceedings.
21.  The period to be taken into consideration began on 24 February 2006, when the applicant lodged her administrative appeal against the building authority's decision to refuse the building permit and has not yet ended. The proceedings before the Berlin Administrative Court at first instance were initiated by the applicant's action for failure to act brought on 25 May 2007 and ended with the Administrative Court's judgment of 21 July 2010. The appeal proceedings before the Berlin Court of Appeal at second instance are still pending. The proceedings have thus meanwhile lasted more than 5 years for one level of compulsory administrative appeal and two levels of jurisdiction.
A.  Admissibility
22.  The Government submitted that only the first applicant had been a party to the proceedings at issue. The second applicant could therefore not claim to be a victim within the meaning of Article 34 of the Convention and his related complaint was thus inadmissible.
23.  The Court notes that the first applicant was the sole owner of the real property for which the building permit was requested and that she alone was a party to the related administrative and court proceedings. It reiterates that an applicant can only claim to be a victim in the meaning of Article 34 of the Convention with respect to the length of domestic court proceedings in the event he or she was a party to the proceedings allegedly infringing the “reasonable time” requirement laid down in Article 6 § 1 of the Convention (see Pupillo v. Italy (just satisfaction), no. 41803/98, § 8, 18 December 2001). It follows that the second applicant cannot claim to be a victim in this respect and that his complaint about the length of the proceedings is to be rejected pursuant to Article 34 and Article 35 §§ 3 (a) and 4 of the Convention.
24.  However, the Court observes that as regards the first applicant the complaint regarding the length of the proceedings before the Berlin Administrative Court is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible in respect of the first applicant.
B.  Merits
25.  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).
26.  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).
27.  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.
28.  The Court notes that the proceedings dealt with the question whether the applicant should be granted the requested building permit and were not particularly complex. Furthermore, while taking into account the Government's submissions that friendly settlement negotiations had contributed to the duration of the administrative appeal proceedings and that the Administrative Court who dealt with the first instance proceedings had been subject to an overload of work, the Court cannot ignore that in the present case the administrative authorities have never decided on the applicant's administrative appeal and that it took the Administrative Court more than three years from the lodging of the action for failure to act on 27 May 2007 until 21 July 2010 before a hearing in the case took place.
29.   As regards the applicant's conduct, the Court notes, as pointed out by the Government, that pursuant to § 75 of the Code of Administrative Court Procedure (see Relevant Domestic Law above) the applicant could have lodged her action for failure to act as from 25 May 2006. However, bearing in mind that an action for failure to act deprives the applicant of one level of supervision and a (potentially favourable) decision by the appeal board and considering in addition that the applicant, as submitted by the Government, had been in contact with the building authorities throughout the period from October 2006 to spring 2007 with a view to discussing a possible settlement of the pending disputes regarding the building permit as well as the prohibition of use order, the Court finds that it cannot be held against the applicant that she lodged her action for failure to act only in May 2007 (see Evelyne Deiwick v. Germany, no. 17878/04, §§ 57 and 68, 11 June 2009 and, by contrast, Glüsen v. Germany, no. 1679/03, § 13-15 and 67, 10 January 2008).
30.  Having regard to the above considerations and its case-law on the subject, the Court 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 of the Convention.
II.  THE REMAINDER OF THE APPLICANTS' COMPLAINTS
31.  The applicants further complained under Article 6 § 1 of the Convention that the proceedings regarding the prohibition of use order were unfair. Relying on Article 8 of the Convention they invoked that the prohibition of use order violated their right to family life. Furthermore, the applicants complained under Article 1 of Protocol No. 1 about the refusal of the building permit. They finally alleged a violation of Articles 2 and 3 of Protocol No. 7 without further substantiation.
32.  The Court has examined the remainder of the applicants' complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
33.  It follows that this part of the complaints is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
34.  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
35.  The applicant claimed 177,384.54 euros (EUR) in respect of pecuniary damage due to the fact that failing the necessary permits the top floor apartment could not be used by her or her family. She specified that an amount of EUR 130,000 was attributable to the loss of the apartment's value and EUR 24,720.54 to the incurred loss of rent. The residual damage consisted of removal costs, running costs, real property and other tax, mortgage rates as well as costs incurred for the Federal Office of Justice (Bundesamt für Justiz).
The applicant further claimed EUR 15,000 just satisfaction in respect of non-pecuniary damage for the excessive length of the proceedings which had caused her chronic stress as well as health and psychological problems. She further claimed EUR 10,000 for the related loss of income.
36.   The Government contested these claims and argued that they had either not been substantiated by the applicant or that the latter failed to demonstrate that the damage had been caused by the length of the proceedings.
As regards non-pecuniary damage, the Government submitted that in view of the circumstances of the case, in particular the unlawful use of the apartment without a construction permit, the finding of a violation was in itself sufficient redress for non-pecuniary damage and the grant of further compensation was not appropriate.
37.  The Court finds that the applicant did not demonstrate that the claimed pecuniary damage had actually been caused by the length of the proceedings. It does not discern any causal link between the violation found and the pecuniary damage alleged and therefore rejects this claim.
On the other hand, it considers that the applicant must have sustained non-pecuniary damage which is not sufficiently compensated by the finding of a violation. The Court notes in this context that the unlawful use of the apartment by the applicant does not exempt the domestic authorities and courts from their obligation to advance the proceedings regarding the building permit. It further observes that the apartment had already been vacated in the course of 2007 while a decision in the proceedings at first instance was only taken on 21 July 2010. Ruling on an equitable basis, the Court awards the applicant EUR 2,800 in respect of non-pecuniary damage.
B.  Costs and expenses
38.  The applicant also claimed EUR 32,430.21 for the costs and expenses incurred in connection with the construction works such as fees for the supervision of works by a building contractor, expert opinions, architects and engineers as well as costs incurred before the domestic courts.
39.  The Government contested these claims on the ground that they had either not been substantiated or supported by documentary evidence or because a causal connection between the alleged costs and the duration of the proceedings was lacking.
40.  	According to the Court's case law, an applicant is entitled to the reimbursement of costs only in so far as it has been shown that these have been actually incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers that the applicant has not established that the costs and expenses were caused by the duration of the proceedings or that the costs before the domestic courts were incurred 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 applicant's costs incurred before the domestic courts (see Maurer v. Austria, no. 50110/99, § 27, 17 January 2002, and Sürmeli v. Germany [GC], no. 75529/01, § 148, ECHR 2006‑VII), the Court considers it reasonable to award the applicant EUR 500 under this head, plus any tax that may be chargeable to him. As the applicant did not submit a claim for costs and expenses incurred in the proceedings before this Court, the Court does not make an award in respect of proceedings before the Court.
C.  Default interest
41.  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
(a)  the complaint concerning the excessive length of the proceedings (i)  admissible in respect of the first applicant;
(ii)  inadmissible in respect of the second applicant;
(b)  the remainder of the applicants' complaints inadmissible;

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

3.  Holds
(a)  that the respondent State is to pay to the first applicant, within three months
(i)  EUR 2,800 (two thousand eight hundred euros) in respect of non-pecuniary damage;
(ii)  EUR 500 (five hundred euros) in respect of costs and expenses;
(iii)  any tax that may be chargeable to the applicant on the above amounts;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 30 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič	Deputy Registrar	President