AS TO THE ADMISSIBILITY OF
by Dieter STEPHAN and Beate RÖHRIG
European Court of Human Rights (Fifth Section), sitting on
29 September 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 13 January 2006,
Having deliberated, decides as follows:
The applicants, Mr Dieter Stephan and Mrs Beate Röhrig, are German nationals who were born in 1951 and 1952 respectively and live in Rösrath. They are represented before the Court by Mr R. Heindl and Mrs A. Mertens, lawyers practising in Overath.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case and first constitutional complaint
The applicants are the owners of a house and a flat in Rösrath-Forsbach, which is situated a few kilometres northeast of the Köln Bonn Airport.
As of 1993 on account of complaints from people living in another community close to the airport the Commission responsible for consulting the Federal Aviation Office (Luftverkehrsbundesamt) with regard to noise pollution (Fluglärmkommission, hereinafter referred to as “the Commission”) identified other possible flight paths.
From 10 November 1994 to 26 October 1995, still in order to obtain further data, a number of the new flight routes were used. This resulted in numerous protests on the part of the then affected communities.
On 26 October 1995 the Federal Aviation Office re-determined the flight routes for air traffic coming and going from the northeast – by means of an amendment to the Fifth Decree of the 147th Order implementing the Aviation Order (Fünfte Verordnung zur Änderung der Hundertsiebenundvierzigsten Durchführungsverordnung zur Luftverkehrs-Ordnung).
On 11 November 1996 the applicants lodged a constitutional complaint against this decree.
On 23 April 1997 the Federal Constitutional Court refused to admit the constitutional complaint on the ground that the applicants were first to seek protection before the administrative courts.
2. Proceedings before the administrative courts
On 23 October 1997 the applicants lodged a claim against the decree with the Nordrhein-Westfalen Administrative Court of Appeal.
In the course of these proceedings the Federal Aviation Office, on the recommendation of the Commission, repeatedly amended the decree, thereby changing the flight routes.
On 19 August 1999, following two hearings, the Nordrhein-Westfalen Administrative Court of Appeal rejected the claim as inadmissible.
On 28 June 2000 the Federal Administrative Court quashed that decision and remitted the case.
On 4 March 2002, following two hearings, the Nordrhein-Westfalen Administrative Court of Appeal rejected the claim as unfounded. It found in particular that the decree was the result of a series of investigations and studies and part of an ongoing development process, that it aimed at reducing the impact on a residential area with a high population and that the result achieved – that the main impact was now on a forest – could not be criticised because there was no real alternative to it. The court also refused leave to appeal.
On 16 December 2002 the Federal Administrative Court rejected the applicants’ appeal against the refusal for leave to appeal. It found that they merely criticised the decision in general terms without, however, substantiating any reason justifying leave to appeal as required by section 133 § 3 Federal Code of Administrative Proceedings (see “Relevant domestic law” below).
3. Proceedings before the Federal Constitutional Court
On 6 February 2003 the applicants lodged a constitutional complaint.
On 30 August 2005 the Federal Constitutional Court refused to admit the constitutional complaint. It found that the applicants had failed to comply with the requirement to exhaust domestic remedies in accordance with the formal requirements laid down in domestic law.
B. Relevant domestic law
Under section 133 § 3 s. 3 Federal Code of Administrative Proceedings a complaint against a refusal for leave to appeal must lay down either the fundamental importance of the matter, indicate the decision with which the impugned decision does not comply or indicate the alleged procedural shortcomings.
applicants complained under Article 8 of the Convention about the
outcome of the proceedings. Invoking Article 13 of the Convention,
they complained that there were no effective remedies against changes to air routes. Finally, under Article 6 of the Convention, they complained about the length of time for which the proceedings were pending before the Federal Constitutional Court.
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning the length of the proceedings before the Federal Constitutional Court;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen