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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> PAMMEL v. GERMANY - 17820/91 [1997] ECHR 39 (1 July 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/39.html
Cite as: [1998] 26 EHRR 100, [1997] ECHR 39, 26 EHRR 100, (1998) 26 EHRR 100
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In the case of Pammel v. Germany (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court B (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr I. Foighel,
Mr R. Pekkanen,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr K. Jungwiert,
Mr U. Lohmus,
Mr J. Casadevall,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 23 January and 29 May 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 48/1996/667/853. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was referred to the Court by a German national,
Mr Friedrich Wilhelm Pammel ("the applicant"), on 21 March 1996, and
by the Government of the Federal Republic of Germany ("the Government")
on 27 March 1996, within the three-month period laid down by Article 32
para. 1 and Article 47 of the Convention (art. 32-1, art. 47).
It originated in an application (no. 17820/91) against Germany
lodged by Mr Pammel with the European Commission of Human Rights
("the Commission") under Article 25 (art. 25) on 15 August 1990.
The applicant's application bringing the case before the Court
referred to Article 48 of the Convention (art. 48), as modified by
Protocol No. 9 (P9), which Germany has ratified; the Government's
application referred to Articles 32 and 48 of the Convention (art. 32,
art. 48). The object of the applications was to obtain a decision as
to whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 6 para. 1 of the Convention
(art. 6-1).
2. On 21 March 1996 the applicant designated the lawyer who would
represent him (Rule 31 of Rules of Court B). The President gave the
lawyer leave to use the German language in both the written and the
oral proceedings (Rule 28 para. 3). The applicant, who was initially
designated by the letters F.W.P., subsequently consented to the
disclosure of his identity.
3. The Chamber to be constituted included ex officio
Mr R. Bernhardt, the elected judge of German nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4). On 30 March 1996, in the presence of the
Registrar, Mr Ryssdal drew by lot the names of the other seven members,
namely Mr I. Foighel, Mr R. Pekkanen, Mr M.A. Lopes Rocha,
Mr L. Wildhaber, Mr K. Jungwiert, Mr U. Lohmus and Mr J. Casadevall
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Government, the
applicant and the Delegate of the Commission on the organisation of the
proceedings (Rules 39 para. 1 and 40). Pursuant to the order made in
consequence, the Registrar received the applicant's memorial on
18 October 1996 and the Government's memorial on 21 October 1996.
On 2 September 1996 the Commission had produced various documents
relating to the proceedings before it, as requested by the Registrar
on the President's instructions.
On 5 November 1996 the Secretary to the Commission informed the
Registrar that the Delegate would present his submissions at the
hearing.
5. On 29 October 1996 Mr Ryssdal had decided, in the interests of
the proper administration of justice and in accordance with Rule 21
para. 6, to allocate the case of Probstmeier v. Germany to the Chamber
already constituted to hear the present case.
6. On 2 December 1996 the Government requested the Chamber to
relinquish jurisdiction immediately in favour of a Grand Chamber
(Rule 53). On 20 January 1997 the Chamber decided not to accede to
that request.
7. In accordance with the decision of the President, who had also
given the Government's Agent leave to plead in German (Rule 28
para. 2), the hearing concerning this case and the case of Probstmeier
v. Germany took place in public in the Human Rights Building,
Strasbourg, on 20 January 1997. The Court had held a preparatory
meeting beforehand.
There appeared before the Court:
(a) for the Government
Mrs H. Voelskow-Thies, Ministerialdirigentin,
Federal Ministry of Justice, Agent,
Mr M. Weckerling, Regierungsdirektor,
Federal Ministry of Justice,
Mr E. Radzwill, Regierungsrat zur Anstellung,
Federal Ministry of Justice, Advisers,
(b) for the Commission
Mr B. Marxer, Delegate;
(c) for the applicant
Mr C. Lenz, of the Stuttgart Bar, Counsel;
(d) for Mrs Probstmeier
Mr P. Kloer, of the Munich Bar, Counsel.
The Court heard addresses by Mr Marxer, Mr Lenz, Mr Kloer and
Mrs Voelskow-Thies.
At the hearing Mrs Voelskow-Thies also sought leave to reply in
writing to the claims under Article 50 (art. 50) lodged by the
applicant and Mrs Probstmeier. By an order of 24 January 1997 the
President granted her request. The Registrar received the Government's
supplementary memorial on 13 February 1997, Mrs Probstmeier's
observations in reply on 24 February and Mr Pammel's observations in
reply on 28 February.
AS TO THE FACTS
I. Circumstances of the case
8. Mr Friedrich Wilhelm Pammel, a German national born in 1933, is
a retired civil servant currently living in Hanover.
9. In 1971 he inherited a plot of land 85,457 sq. m in area leased
to the Höxter town council in 1949 to be used as allotment gardens.
The initial lease ran until 30 September 1958. By a clause
subsequently added to the lease, this was extended to
30 September 1978. From 1 October 1955 the rent (Pachtzins) amounted
to 0.04 German marks (DEM) per square metre per year.
The Höxter town council leased the land to the
Höxter Allotment Garden Association (Kleingartenverein), which, in its
turn, sub-let it to individual tenants.
The Land Government fixed the rent at DEM 0.08 per square metre
per year with effect from 1 January 1977.
A. The proceedings in the administrative courts
10. On 18 September 1978 the applicant applied to the
Minden Administrative Court (Verwaltungsgericht) contesting the rent
fixed by the Land Government and requesting the Administrative Court
to refer to the Federal Constitutional Court (Bundesverfassungsgericht)
the question of the constitutionality of the provisions of the
1919 Allotment Gardens Act (Kleingartenordnung) concerning rents.
11. On 31 January 1980 the Administrative Court referred the case to
the Federal Constitutional Court in accordance with Article 100 para. 1
of the Basic Law (Grundgesetz) (see paragraph 34 below).
12. In a letter of 15 May 1985 the Federal Constitutional Court asked
the Administrative Court to reconsider its decision to refer the case
(Vorlagebeschluß), to expand it if need be or to revoke it.
13. On 22 May 1985 the Administrative Court withdrew its request for
a reference and gave judgment against the applicant.
The applicant appealed against the above judgment to the
Münster Administrative Court of Appeal (Oberverwaltungsgericht).
14. In a judgment of 16 May 1988 the Administrative Court of Appeal
set aside the judgment of the Administrative Court and the impugned
decision of the Land Government fixing the rent.
B. The proceedings in the civil courts
15. In a letter of 16 March 1976 the applicant terminated the lease
with effect from 30 September 1978. He subsequently repeated the
notice of termination several times.
16. On 23 May 1980 the applicant brought proceedings in the
Paderborn Regional Court (Landgericht) seeking an order for possession
(Räumung) against the Höxter town council and the
Allotment Garden Association.
17. On 14 August 1980 the Regional Court decided to stay the
proceedings (das Verfahren auszusetzen) following a judgment of the
Federal Constitutional Court of 12 June 1979 in which it had been held
that some of the provisions of the Allotment Gardens Act concerning the
termination of leases were unconstitutional.
18. The new Federal Allotment Gardens Act (Bundeskleingartengesetz)
of 28 February 1983, came into force on 1 April 1983, and the
proceedings in the Regional Court were resumed at the applicant's
request on 17 March 1983.
19. From 6 June 1983 to 20 August 1985 the Regional Court stayed the
proceedings (das Verfahren ruhen lassen) on the ground that the
Höxter town council intended to draw up a land-use plan (Bebauungsplan)
designating the land in question as a "permanent allotment garden zone"
(Fläche für Dauerkleingärten - see section 16 (4) of the
Federal Allotment Gardens Act, paragraph 30 below).
20. On 7 November 1985 the Regional Court, after holding a hearing
at Mr Pammel's request, granted his application in part. It ordered
the whole site to be returned to him, not immediately, but on
31 March 1987, in accordance with section 16 (3) of the
Federal Allotment Gardens Act (see paragraph 30 below). In addition,
it held that this provision was compatible with Article 14 of the
Basic Law (see paragraph 29 below) and refused to refer the case to the
Federal Constitutional Court as the applicant had requested.
21. The defendants, namely the Höxter town council and the
Allotment Garden Association, appealed against the above judgment to
the Hamm Court of Appeal (Oberlandesgericht).
22. On 18 December 1986 the Höxter town council adopted the land-use
plan it had announced (see paragraph 19 above). The
administrative authorities' decision approving this plan was published
on 14 March 1987.
23. On 20 May 1987 the Court of Appeal decided to stay the
proceedings and refer the case to the Federal Constitutional Court,
submitting the following two questions:
"1. Is it compatible with Article 14 of the Basic Law for a
lease granted by a private lessor before the entry into force of
the Federal Allotment Gardens Act of 28 February 1983, for a
fixed term due to expire before the Act came into force, and in
respect of allotment gardens which are not permanent, to expire
only on 31 March 1987 pursuant to section 16 (3) of the Act?
and, if so,
2. Is it compatible in such a case with Article 14 of the
Basic Law for the lease referred to in the first sentence of
section 16 (4) of the Allotment Gardens Act to be extended for
an indefinite period where a local authority has adopted a
land-use plan designating a zone to be used for 'permanent
allotment gardens' before expiry of the lease as defined in
section 16 (3) of the Act?"
The Court of Appeal held that the question of the
constitutionality of section 16 (3) and, in the event of the latter
being pronounced compatible with the Basic Law, of section 16 (4) of
the Federal Allotment Gardens Act was decisive for the outcome of the
proceedings. The contractual relation between the plaintiff and the
defendants would continue, in spite of the termination of the lease on
30 September 1978, if it had been extended:
- initially until 31 March 1987, pursuant to section 16 (3) of
the Federal Allotment Gardens Act and
- subsequently under the land-use plan of 18 December 1986 for
an indefinite period, pursuant to the first sentence of section 16 (4)
of the Act.
C. The proceedings in the Federal Constitutional Court
24. On 26 June 1987 the Court of Appeal referred the case to the
Federal Constitutional Court, in accordance with the first sentence of
Article 100 para. 1 of the Basic Law (see paragraph 34 below).
25. In the meantime, on 24 May 1985, the Federal Court of Justice
(Bundesgerichtshof) had referred to the Federal Constitutional Court
the question concerning the constitutionality of section 16 (3) of the
Federal Allotment Gardens Act raised in the Probstmeier case (see the
Probstmeier v. Germany judgment of 1 July 1997, Reports of Judgments
and Decisions 1997-IV).
26. The Federal Constitutional Court decided to join the two cases.
27. In a letter of 16 November 1990 the Federal Constitutional Court
informed the applicant that because of its caseload, which had
increased after the reunification of Germany, judgment would not be
given on the question of the constitutionality of the provisions of the
Federal Allotment Gardens Act before 1991.
28. After receiving the observations made by the Minister for
Town and Country Planning (Raumordnung, Bauwesen und Städtebau) on
behalf of the Federal Government, and those of the Organisation of
German Towns (Deutscher Städtetag), four other non-governmental
organisations, the parties and the Federal Court of Justice, the
Federal Constitutional Court decided to extend the review of
constitutionality so as to embrace the first sentence of section 5 (1)
of the Federal Allotment Gardens Act (see paragraph 30 below).
On 23 September 1992 the First Division (Erster Senat) of the
Federal Constitutional Court gave judgment (Reports of the Decisions
of the Federal Constitutional Court, BVerfGE, vol. 87, pp. 114-51).
It held that, pursuant to the transitional provisions of
section 16 of the Act, rent control continued to apply during the
period for which former fixed-term leases had been extended.
The Federal Constitutional Court held that section 16 (3) and the
first sentence of section 16 (4) of the Federal Allotment Gardens Act
were constitutional, but pointed out that section 16 (3) had to be
interpreted in a manner consistent with the Basic Law. On the other
hand, it decided that the rent control provided for in the
first sentence of section 5 (1) of the Act was contrary to the
first sentence of Article 14 para. 1 of the Basic Law, in so far as it
concerned leases granted by private lessors, since it imposed an
excessive and disproportionate burden on lessors.
II. Relevant domestic law
A. Substantive law
29. Article 14 para. 1 of the Basic Law provides:
"Property and the right of succession shall be guaranteed. Their
content and limits shall be laid down by law."
30. The relevant provisions of the Federal Allotment Gardens Act of
28 February 1983, which came into force on 1 April 1983, are worded as
follows:
Section 5 (1)
"The rent shall be not more than twice the rent for a lease
granted in the same locality for a market garden producing fruit
or vegetables, depending on the total area of the allotment. The
areas allocated to amenities for common use shall be taken into
account when the amount payable in rent for each allotment is
calculated."
Section 16
"1. Allotment leases which have not expired by the date of the
entry into force of the present Act shall be governed by the
present Act from the date of its entry into force.
2. Leases granted before the entry into force of the
present Act in respect of allotments which, on the date of the
Act's entry into force, are not 'permanent' gardens shall be
deemed leases in respect of 'permanent' gardens where the owner
of the land is the local authority.
3. Where the leases referred to in subsection 2 concern plots
of land not owned by the local authority, they shall expire on
31 March 1987 if they have been granted for a fixed term expiring
before that date, otherwise they shall run for the term agreed.
4. Where, before expiry of the lease as provided for in
subsection 3, the land occupied by an allotment garden has been
designated in the land-use plan as land for 'permanent' allotment
gardens, the lease shall be extended for an indefinite period.
Where the local authority has decided, before 31 March 1987, to
draw up a land-use plan with a view to designating the land to
be used for 'permanent' allotment gardens and has made its
decision public in accordance with the second paragraph of
Article 2 para. 1 of the Town Planning Code (Baugesetzbuch), the
lease shall be extended for four years with effect from the date
of publication of that decision, the period between the date
agreed for expiry of the lease and 31 March 1987 being taken into
account. The provisions relating to 'permanent' allotment
gardens shall apply with effect from the date on which the
land-use plan becomes final."
31. Following the Federal Constitutional Court's judgment of
23 September 1992 a new law amending the Federal Allotment Gardens Act
(Bundeskleingartenänderungsgesetz) came into force on 1 April 1994.
32. Section 5 (1) of this new law reads:
"The rent shall be not more than four times the rent for a lease
granted in the same locality for a market garden producing fruit
or vegetables, depending on the total area of the allotment. The
areas allocated to amenities for common use shall be taken into
account when the amount payable in rent for each allotment is
calculated."
33. The transitional provisions of the law in question provide that
in all cases where proceedings were pending on 1 November 1992 but
where there has been no final judgment fixing the amount of rent
payable, private lessors may retrospectively claim four times the rent
for a lease granted in the same locality for a market garden producing
fruit or vegetables, with effect from the first day of the month
following the commencement of the proceedings.
B. Procedural law
1. The Basic Law
34. Article 100 para. 1 of the Basic Law provides as follows:
"Where a court considers unconstitutional a law whose validity
is relevant to its decision, the proceedings shall be stayed and
the question submitted ... to the Federal Constitutional Court
if the present Basic Law is considered to have been breached ..."
2. The Federal Constitutional Court Act
35. The composition and functioning of the
Federal Constitutional Court are governed by the Federal Constitutional
Court Act (Gesetz über das Bundesverfassungsgericht).
36. According to section 2 of the Act, the
Federal Constitutional Court is constituted in two divisions, each
composed of eight judges.
37. Sections 80 to 82 concern review of constitutionality in
connection with a specific case (Konkrete Normenkontrolle), and are
worded as follows:
Section 80
"1. Where the requirements of Article 100 para. 1 of the
Basic Law are met, a court shall apply directly to the
Federal Constitutional Court for a decision.
2. In the reasons for its application the court must state in
what respect its decision depends on the validity of the
legislative provision in issue and what higher-ranking legal rule
it is incompatible with. The application must be accompanied by
the file.
3. The application by the court shall be independent of any
complaint by a party to the proceedings that the legislative
provision in issue is null and void."
Section 81
"The Federal Constitutional Court shall determine only the point
of law."
Section 82
"1. The provisions of sections 77 to 79 shall apply
mutatis mutandis.
2. The constitutional organs named in section 77 may join the
proceedings at any stage.
3. The Federal Constitutional Court shall also give the
parties to the proceedings before the court which has made the
application the opportunity to state their views; it shall invite
them to participate in the oral proceedings and shall permit the
legal representatives present to address it.
4. The Federal Constitutional Court may ask the highest
federal courts of justice or the highest Land courts to state:
how and on the basis of what considerations they have hitherto
interpreted the Basic Law with regard to the point in question;
whether, and if so how, they have applied the legal provision in
issue in previous cases; and what related points of law, in their
opinion, remain to be determined. It may also ask them for their
views on a point of law that has a bearing on its decision. The
Federal Constitutional Court shall communicate these submissions
to the bodies authorised to state their views."
38. Sections 77 to 79, to which section 82 refers, provide:
Section 77
"The Federal Constitutional Court must give the Bundestag, the
Bundesrat, the Federal Government and in addition, where there
are differences of opinion concerning the validity of
federal law, the Land Governments or, where there are differences
of opinion concerning the validity of a provision of Land law,
the Parliament and Government of the Land in which that provision
was promulgated, the opportunity to state their views [on the
matter] within a specified period."
Section 78
"Where the Federal Constitutional Court comes to the conclusion
that a provision of federal law is incompatible with the
Basic Law or that a provision of Land law is incompatible with
the Basic Law or any other part of federal law, it shall declare
that provision null and void. Where further parts of the same
statute are, for the same reasons, incompatible with the
Basic Law or any other part of federal law, the
Federal Constitutional Court may likewise declare them null and
void."
Section 79
"...
2. In all other respects, subject to the provisions of
section 95 (2) or a specific statutory provision, final decisions
based on a rule declared null and void pursuant to section 78
shall remain unaffected. Such decisions shall not be enforceable
..."
PROCEEDINGS BEFORE THE COMMISSION
39. Mr Pammel applied to the Commission on 15 August 1990. Relying
on Article 6 para. 1 of the Convention (art. 6-1), he complained of the
length of the proceedings in the Federal Constitutional Court.
40. On 10 January 1995 the Commission declared the application
(no. 17820/91) admissible. In its report of 25 January 1996
(Article 31) (art. 31) it expressed the unanimous opinion that there
had been a violation of Article 6 para. 1 of the Convention (art. 6-1).
The full text of the Commission's opinion is reproduced as an annex to
this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-IV), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
41. In their memorial the Government asked the Court to hold
"that the right of the applicant under Article 6 para. 1 of the
Convention (art. 6-1) to a decision within a reasonable time has
not been violated".
42. The applicant asked the Court
"to hold that there has been a violation of Article 6 para. 1 of
the Convention (art. 6-1) and that Germany must pay the applicant
DEM 413,044.25 as compensation for pecuniary damage and
DEM 80,950 for costs and expenses."
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
43. The applicant submitted that the length of the proceedings in the
Federal Constitutional Court had exceeded the reasonable time referred
to in Article 6 para. 1 of the Convention (art. 6-1), which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
44. The Government contested this argument, whereas the Commission
accepted it.
45. The Court must first determine whether Article 6 para. 1
(art. 6-1) is applicable.
A. Applicability of Article 6 para. 1 (art. 6-1)
46. The Government submitted that there were substantial differences
between an individual complaint of unconstitutionality
(Verfassungsbeschwerde), as in the Süßmann case (see the Süßmann
v. Germany judgment of 16 September 1996, Reports of Judgments and
Decisions 1996-IV), and an objective review of the constitutionality
of legislation carried out in connection with an application for a
preliminary ruling, as in the present case. Even though the
proceedings in the Federal Constitutional Court were linked to
proceedings relating to "civil rights and obligations", they had a
different purpose, since they concerned the constitutionality of
certain provisions of the Allotment Gardens Act. To link a decision
given in response to an application for a preliminary ruling with
proceedings in the ordinary courts was to disregard the special
function of the Federal Constitutional Court and the specific features
of the type of procedure in question. Moreover, in view of the
importance of such a decision, which had the force of law, the
Federal Constitutional Court could not be required to give judgment
within a precise time-limit.
47. The applicant maintained that, according to the criteria
established by the Court's case-law, the applicability of Article 6
para. 1 of the Convention (art. 6-1) to the proceedings in issue was
not open to doubt. There was evidently a very close link between
proceedings in the ordinary courts and a review of constitutionality
arising from those proceedings (Konkrete Normenkontrolle), where the
decision of the Federal Constitutional Court was always decisive for
the outcome.
48. The Commission, which referred to the Court's case-law, also
concluded that Article 6 para. 1 (art. 6-1) was applicable to the
proceedings in question.
49. As the Court stated in the Süßmann judgment, it is fully aware
of the special role and status of a constitutional court, which, in
those States that have made provision for a right of individual
petition, affords additional legal protection to citizens at national
level in respect of their fundamental rights guaranteed in the
Constitution (see the aforementioned Süßmann judgment, p. 1170,
para. 37).
50. The Court observes that it has already had to consider on a
number of occasions the question of the applicability of Article 6
para. 1 (art. 6-1) to the proceedings before a constitutional court.
51. In accordance with its established case-law on the question
(see, most recently, the Ruiz-Mateos v. Spain judgment of 23 June 1993,
Series A no. 262, p. 19, para. 35, and the aforementioned
Süßmann judgment, p. 1171, para. 39), the relevant criterion for
determining whether proceedings before a constitutional court should
be taken into account in order to establish whether the overall length
of proceedings was reasonable is the question whether the result of
those proceedings may influence the outcome of the proceedings in the
ordinary courts.
52. A particular feature of the present case is that it concerns only
the length of the proceedings in the Federal Constitutional Court, as
in the Süßmann case, because before the Commission the applicant
complained of the length of those proceedings only (see paragraph 36
of the Commission's report). On the other hand, the Süßmann case
concerned an individual constitutional appeal, whereas in this case the
Hamm Court of Appeal asked the Federal Constitutional Court to give a
ruling on the constitutionality of legislative provisions. In that
respect it therefore more closely resembles the Ruiz-Mateos case
(see the aforementioned Ruiz-Mateos judgment, p. 12, para. 15, and
p. 14, para. 22).
53. The Court reiterates that proceedings come within the scope of
Article 6 para. 1 (art. 6-1), even if they are conducted before a
constitutional court, where their outcome is decisive for civil rights
and obligations (see the aforementioned Süßmann judgment, p. 1171,
para. 41).
54. In the present case the applicant had terminated the lease with
the Höxter town council and had sought a possession order against the
council and the Allotment Garden Association with a view to recovering
his land (see paragraphs 15 and 16 above). The dispute before the
civil courts therefore concerned the applicant's right of property,
which is certainly a civil right within the meaning of Article 6
(art. 6) (see, inter alia, the Zander v. Sweden judgment of
25 November 1993, Series A no. 279-B, p. 40, para. 27). Moreover, that
has not been disputed.
55. The Hamm Court of Appeal subsequently referred the case to the
Federal Constitutional Court for a ruling on the constitutionality of
the impugned provisions of the Federal Allotment Gardens Act
(see paragraph 23 above).
56. Under German law a court must stay proceedings and refer a case
to the Federal Constitutional Court if it considers a law whose
validity has a bearing on its decision to be unconstitutional
(Article 100 para. 1 of the Basic Law, see paragraph 34 above). In the
reasons for its application it must state in what respect the outcome
of the proceedings before it depends on the validity of the legislative
provision in issue (section 80 (2) of the
Federal Constitutional Court Act, see paragraph 37 above).
57. In the present case the proceedings in the
Federal Constitutional Court were therefore closely linked to those in
the civil courts; not only was the former's decision directly decisive
for the applicant's civil right, but in addition, as the proceedings
arose from an application for a preliminary ruling, the
Hamm Court of Appeal was obliged to wait for the
Federal Constitutional Court's decision before it could give judgment.
58. It follows that Article 6 para. 1 (art. 6-1) is applicable to the
proceedings in issue.
B. Compliance with Article 6 para. 1 (art. 6-1)
1. Period to be taken into consideration
59. The period to be taken into consideration is only the time taken
for the proceedings in the Federal Constitutional Court, which began
on 26 June 1987 when the Hamm Court of Appeal made its application to
the Federal Constitutional Court and ended on 23 September 1992 when
the latter gave judgment. It therefore lasted just under five years
and three months.
2. Applicable criteria
60. The reasonableness of the length of proceedings must be assessed
in the light of the circumstances of each case and having regard in
particular to the complexity of the case and the conduct of the parties
and the relevant authorities (see the aforementioned Süßmann judgment,
pp. 1172-73, para. 48).
(a) Complexity of the case
61. In the applicant's submission, the case was not particularly
complex; it would have sufficed for the Federal Constitutional Court
to transpose to the present case the reservations it had previously
expressed in a 1979 judgment about the constitutionality of the
provisions of the Federal Allotment Gardens Act establishing a
rent freeze (see paragraph 17 above).
62. The Government maintained that the case was complex because after
the Federal Constitutional Court's 1979 judgment Parliament had
promulgated in 1983 an entirely new Allotment Gardens Act, thus
creating a new basis for legal issues relating thereto
(see paragraph 18 above).
63. The Court, like the Commission, considers that the case was
undoubtedly complex. The fact that the Federal Constitutional Court
decided of its own motion to extend the review of constitutionality to
another provision of the Allotment Gardens Act, ruling on that issue
in its judgment of 23 September 1992, in which it set out its reasons
at some length, attests to the legal difficulty of the issues raised.
The scope of its judgment thus went well beyond the present case.
Moreover, the Federal Constitutional Court had to obtain the
observations of various authorities before it gave its decision
(see paragraph 28 above).
(b) Conduct of the applicant
64. Like the Commission, the Court notes that the applicant was not
responsible for any delay to the proceedings. Moreover, no assertion
to that effect was made by the Government.
(c) Conduct of the Federal Constitutional Court
65. Mr Pammel submitted that proceedings which had lasted five years
far exceeded a "reasonable time" within the meaning of Article 6
para. 1 of the Convention (art. 6-1) and that it was for the State to
ensure that the Federal Constitutional Court was not burdened with an
excessive caseload. Furthermore, account should also be taken of the
fact that the Federal Court of Justice had referred a similar question
to the Federal Constitutional Court in connection with the
Probstmeier case (see paragraph 25 above) in 1985, that is two years
before the Hamm Court of Appeal. Lastly, the issues raised affected
about one million tenants and some one hundred thousand private
lessors.
66. The Government emphasised the Federal Constitutional Court's
excessive caseload since the end of the 1970s, which had obliged it to
deal with more urgent cases, of considerable political and social
importance, some of which concerned the after-effects of
German reunification. Numerous efforts, they added, had already been
made to amend the Federal Constitutional Court Act and lighten the
Federal Constitutional Court's burden. However, the possibilities for
structural changes were objectively limited if the
Federal Constitutional Court were to preserve its role as guardian of
the Constitution and fundamental rights.
67. In the Commission's view the length of the proceedings in the
present case had been excessive, particularly in view of the special
importance of the case for other landlords in the same situation.
68. The Court observes that it has repeatedly held that Article 6
para. 1 (art. 6-1) imposes on the Contracting States the duty to
organise their judicial systems in such a way that their courts can
meet each of its requirements, including the obligation to hear cases
within a reasonable time (see the aforementioned Süßmann judgment,
p. 1174, para. 55). Although this obligation cannot be construed in
the same way for a constitutional court as for an ordinary court, it
is for the European Court in the last instance to verify that it has
been complied with, having regard to the particular circumstances of
each case and the criteria laid down in its case-law.
69. Moreover, a temporary backlog of court business does not entail
a Contracting State's international liability if it takes appropriate
remedial action with the requisite promptness (see the
Unión Alimentaria Sanders S.A. v. Spain judgment of 7 July 1989,
Series A no. 157, p. 15, para. 40). However, according to the Court's
established case-law, a chronic overload, like the one the
Federal Constitutional Court has laboured under since the end of the
1970s, cannot justify an excessive length of proceedings.
70. In the present case the Hamm Court of Appeal applied to the
Federal Constitutional Court for a ruling in June 1987 and the
proceedings remained pending there for more than five years
(see paragraphs 24 and 28 above).
71. Unlike the position in the Süßmann case, German reunification can
have played only a secondary role in the present case because when the
reunification treaty was signed, on 3 October 1990, the Pammel case had
been pending in the Federal Constitutional Court for more than
three years.
Moreover, the Federal Court of Justice had already submitted the
same question to the Federal Constitutional Court in connection with
the Probstmeier case (see paragraph 25 above) in May 1985, that is
two years before the Hamm Court of Appeal.
72. Accordingly, despite the complexity of the case, the length of
the constitutional proceedings cannot satisfy the reasonable time
requirement laid down in Article 6 para. 1 of the Convention
(art. 6-1).
(d) Conclusion
73. In the light of all the circumstances of the case, the Court
concludes that the reasonable time required by Article 6 para. 1
(art. 6-1) was exceeded, and that the provision (art. 6-1) in question
was therefore breached in that respect.
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
74. Under Article 50 of the Convention (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court, shall, if necessary, afford just satisfaction to the
injured party."
A. Pecuniary damage
75. Mr Pammel sought compensation for pecuniary damage in the sum of
413,044.25 German marks (DEM), corresponding to the loss of rent for
the period from 1977 to 1993 and loss of interest for the period from
1984 to 1996. He asserted that the length of the proceedings in the
Federal Constitutional Court had prevented him from applying to the
civil courts at the appropriate time for a rent increase, as he was
entitled to do under the transitional provisions of the new
Allotment Gardens Act 1994 (see paragraph 33 above).
76. The Government maintained that there was no causal connection
between any violation which might be found on account of the length of
the proceedings and the alleged pecuniary loss. The proceedings in the
Hamm Court of Appeal concerned only Mr Pammel's application for a
possession order against the tenants, not a request for the rent to be
increased (see paragraphs 16-23 above). That was why only the question
of the constitutionality of section 16 of the
Federal Allotment Gardens Act, relating to the duration of leases, had
been referred to the Federal Constitutional Court (see paragraph 23
above). Furthermore, there was no causal connection either between the
Hamm Court of Appeal's initial application for a preliminary ruling and
the fact that the Federal Constitutional Court extended the review of
constitutionality of its own motion or between the latter's judgment
and the promulgation of a new law enabling private lessors to obtain
higher rents retrospectively (see paragraph 33 above).
77. The Delegate of the Commission did not exclude the possibility
that the excessive length of the proceedings could have caused the
applicant pecuniary loss and asked the Court to award him financial
compensation on an equitable basis.
78. The Court notes that in choosing to extend the review of
constitutionality to section 5 of the Federal Allotment Gardens Act the
Federal Constitutional Court must have considered that the provisions
concerning the duration of leases and those concerning rent levels were
linked.
Even though Parliament enjoyed a measure of discretion over
details (Gestaltungsbefugnis) as regards promulgation of the new law
following the Federal Constitutional Court's judgment, the Court
considers it reasonable to conclude that, as a result of the delay, in
breach of Article 6 para. 1 (art. 6-1), found in the present judgment,
the applicant suffered a loss of opportunities which warrants an award
of just satisfaction in respect of pecuniary damage (see, in
particular, mutatis mutandis, the Martins Moreira v. Portugal judgment
of 26 October 1988, Series A no. 143, pp. 22-23, para. 65, and the
Silva Pontes v. Portugal judgment of 23 March 1994, Series A no. 286-A,
p. 16, para. 46).
The damage sustained can only consist in the loss of interest,
given that the new Federal Allotment Gardens Act of 1994 gave the
applicant the right to claim a higher rent retrospectively
(see paragraph 33 above), and cannot be precisely calculated.
Assessing it as a whole and on an equitable basis, as required by
Article 50 (art. 50), the Court awards Mr Pammel compensation in the
sum of DEM 15,000.
B. Costs and expenses
79. The applicant further claimed reimbursement of his costs before
the domestic courts and the Commission between 1985 and 1996, which he
put at DEM 60,000. For the proceedings before the Court he claimed
DEM 20,950 for his lawyer's fees, calculated on the basis of the value
of the subject matter, in accordance with the regulations on lawyers'
fees (Bundesrechtsanwaltsgebührenordnung - BRAGO) applicable in
Germany.
80. The Government argued that the sums claimed were excessive as
regards both the costs incurred by the applicant himself and his
lawyer's fees. In addition, the amount claimed for the latter was
unfounded because it was based on pecuniary damage which had not been
established.
81. The Delegate of the Commission submitted that the amounts claimed
were in principle justified.
82. According to its settled case-law, the Court will award costs and
expenses only in so far as these relate to the violation found and to
the extent to which they have been actually and necessarily incurred
and are reasonable as to quantum (see, inter alia, the
Schouten and Meldrum v. the Netherlands judgment of 9 December 1994,
Series A no. 304, pp. 28-29, para. 78).
In that respect it considers the amounts claimed by the applicant
excessive, especially because it does not appear that the costs for the
domestic proceedings were incurred in order to prevent or secure
redress for the violation of the Convention.
With regard to lawyers' fees, the Court reiterates that it does
not consider itself bound by domestic scales and practices, although
it may derive some assistance from them.
Making an assessment on an equitable basis, the Court awards the
applicant the overall sum of DEM 10,000, together with any
value-added tax (VAT) that may be chargeable.
C. Default interest
83. According to the information available to the Court, the
statutory rate of interest applicable in Germany at the date of
adoption of the present judgment is 4% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 para. 1 of the Convention (art. 6-1) is
applicable in the case;
2. Holds that there has been a breach of Article 6 para. 1
(art. 6-1);
3. Holds that the respondent State is to pay the applicant, within
three months, 15,000 (fifteen thousand) German marks for
pecuniary damage and 10,000 (ten thousand) German marks, together
with any VAT that may be chargeable, for costs and expenses;
4. Holds that simple interest at an annual rate of 4% shall be
payable from the expiry of the above-mentioned three months until
settlement;
5. Dismisses the remainder of the claim for just justification.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 1 July 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the concurring
opinion of Mr Foighel is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE FOIGHEL
The applicable criteria for evaluating the reasonableness of the
length of proceedings for the purposes of Article 6 para. 1 (art. 6-1)
are clearly stated in paragraph 60, where the Court says that
reasonableness must be "assessed in the light of the circumstances of
each case and having regard in particular to the complexity of the case
and the conduct of the parties and the relevant authorities".
This is further developed in paragraph 68, where it is stated
that the obligation in Article 6 para. 1 (art. 6-1) "... cannot be
construed in the same way for a constitutional court as for an
ordinary court ..."
I find this formulation unfortunate. While it is obvious that
some constitutional cases may be more complex than some
non-constitutional cases, the mere fact that a case is heard by a
constitutional court cannot by itself change the criteria mentioned in
paragraph 60. This is further underlined by the fact that in some of
the member States there is no Constitutional Court.
However, the majority have given me to understand that the
formulation in paragraph 68 is not intended to change or add anything
to the Court's long-standing jurisprudence.