AS TO THE ADMISSIBILITY OF
by Hans-Georg VON KOESTER
The European Court of Human Rights (Fifth Section), sitting on 24 November 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 21 September 2007,
Having deliberated, decides as follows:
The applicant, Mr Hans-Georg von Koester, is a German national who was born in 1922 and lives in Bonn. He is represented before the Court by Mr H.-K. von Koester, a lawyer practising in Wiesbaden.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 19 April 1989 the applicant brought civil proceedings before the Wiesbaden Regional Court against the former tenant of his business premises, claiming, inter alia, payment of outstanding rent and the court’s declaration that the tenancy agreement had been terminated on 1 January 1989.
As the defendant failed to defend his case in an oral hearing held on 11 October 1989 the Regional Court partly found for the applicant on 29 November 1989 by way of a default judgment (Versäumnis-Teilurteil).
final judgement of 28 March 1990 (Schlußurteil) the
Regional Court ordered the defendant, inter alia, to pay
further outstanding rent;
it declared that the tenancy agreement had been terminated on
1 August 1989 and dismissed the applicant’s remaining claims.
On 12 and 23 July 1990 the judgment was served on the parties.
On 24 September 1990 the applicant appealed against the judgment to the Frankfurt Court of Appeal in so far as the Regional Court had dismissed his action.
On 29 April 1991 he extended his claims by some 36,542 German marks (DEM, approximately 18,684 euros (EUR)) for the costs incurred for the renovation of his premises.
On 18 March 1992 the Court of Appeal commissioned an expert report.
On 10 February 1993 expert B. delivered his report concerning the rental value of the applicant’s premises.
On 9 June 1993 expert A. delivered a report concerning the costs incurred for various renovation works and the paintwork of the windows.
On 6 October 1993 the applicant submitted several objections to the expert’s findings.
On 4 October 1994 the Court of Appeal commissioned a further expert report.
On 24 February 1996 expert W. delivered a report on the renovation of the parquet floor of the premises.
On 26 March 1997 the Court of Appeal held an oral hearing in which it heard expert W.
On 25 June 1997 the Frankfurt Court of Appeal partly quashed the Regional Court’s judgment. It ordered the defendant to make further payments to the applicant, but rejected the applicant’s claims for the renovation costs. Furthermore it ordered the applicant to bear one third of the costs of the proceedings given that he had lost his case.
February 2000 the Federal Court of Justice quashed the Court of
Appeal’s judgment as to its decision on the costs of the
proceedings and in so far as it had rejected the applicant’s
claims for his renovation costs.
In these respects it remitted the case to the Court of Appeal for fresh consideration.
On 24 January 2001 the Frankfurt Court of Appeal held an oral hearing.
judgment of 21 March 2001 the Court of Appeal ordered the defendant
to pay the applicant a further DEM 20,945 (approximately
EUR 10,709) and dismissed the remainder of the applicant’s claims.
On 28 March 2001 the judgment was served on the applicant.
On 15 January 2003 the Hessen Constitutional Court quashed the Court of Appeal’s judgement and remitted the case to the Court of Appeal for fresh consideration. The Constitutional Court found that the Court of Appeal had violated the applicant’s right to be heard as it had failed to consider the applicant’s essential submissions in respect of his claims, his substantiated and repeated objections to A.’s expert report and the observations made by expert W. in the oral hearing of 27 March 1997.
On 8 February 2006 the Regional Court issued a judgment by consent (Anerkenntnisurteil) ordering the defendant to pay the applicant a further EUR 9,233. Furthermore it ordered the applicant to pay 13.7% of the costs of the proceedings at first instance, 34.5% of the costs of the proceedings at second instance and 65% of the costs of the proceedings at third instance, given that he had partly lost his case.
On 4 September 2006 the applicant lodged a constitutional complaint with the Hessen Constitutional Court in which he mainly complained about the distribution of the costs of the proceedings.
On 14 March 2007 the Hessen Constitutional Court ordered the applicant to pay an advance on the court fees amounting to EUR 750 and informed him that it had doubts as to the admissibility of his constitutional complaint.
On 21 March 2007 that decision was served on the applicant.
The Court, which is the master of the characterisation to be given in
law to the facts of the case (see Guerra and Others v. Italy,
19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44), intends to examine the question whether the proceedings had taken place within a reasonable time under Article 6 § 1 of the Convention alone, which, in so far as relevant, provides:
“In the determination of his civil rights and obligations ..., 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.
It follows that these complaints must be rejected under Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the length of the proceedings;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen