European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36395/07
by Kurt MÜLLER
against Germany

The European Court of Human Rights (Fifth Section), sitting on
11 March 2008 as a Chamber composed of:

Peer Lorenzen, President,
Snejana Botoucharova,
Volodymyr Butkevych,
Rait Maruste,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 17 August 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Kurt Müller, is a German national who was born in 1956 and lives in Binsfeld. He is represented before the Court by
Ms E. C. Triebel, a lawyer practising in Katzweiler.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

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.

In 1994 V brought an action against the Federal Republic of Germany before the Trier Regional Court. She claimed compensation for the depreciation of her property due to the noise generated by the Spangdahlem airport.

Following V’s death on 1 February 1996, the applicant continued the proceedings before the Regional Court as successor of the deceased.

On 15 August 2000 the Regional Court held an oral hearing.

On 5 December 2000 the Regional Court ordered the defendant to grant the applicant reasonable compensation for the depreciation of his property caused by the noise at the airport. The court relied on the findings of several pilot judgments rendered in 1998 in respect of other residents who owned property nearby the airport and who had lodged their actions for compensation in 1990.

In early 2001 the defendant appealed to the Koblenz Court of Appeal. The Court of Appeal undertook a site inspection and commissioned an expert report. On 28 September 2005 it held an oral hearing.

On 15 November 2005 the Court of Appeal declared that the defendant was required to pay damages for the loss of value to the applicant’s property. However, it amended the Regional Court’s judgment in that it found that the depreciation 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.

Subsequently, 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.

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 the decision was served on the applicant’s lawyer.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length of the compensation proceedings. Moreover, he complained under Article 1 of Protocol No. 1 that the noise pollution had caused a considerable reduction in the value of his property which amounted to an expropriation. Invoking Article 2 of Protocol No. 4 he alleged that it was impossible to sell his property and to move to another house.

THE LAW

A.  The length of the proceedings

The applicant complained about the length of proceedings under
Article 6 § 1 of the Convention, which, as far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court finds that it cannot, on the basis of the case file, determine the admissibility of the complaint. It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

B.  The remainder of the complaints

Invoking Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 the applicant complained about the depreciation of his property caused by the noise pollution and his impossibility to sell his plot of land and to move to another house.

The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. In the present case, the applicant failed to lodge a constitutional complaint before the Federal Constitutional Court.

Consequently, this part of the application is inadmissible for
non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of proceedings;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President