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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
- 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.
- The
German Government (“the Government”) were represented by
their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of
the Federal Ministry of Justice.
- 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.
- The
Government filed observations on the merits of the application (Rule
59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- On
31 May 2010 an oral hearing in the said proceedings was scheduled for
21 July 2010.
- 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
- 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
- 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...”
- 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.
- 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
- 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.
- 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.
- 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
- 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).
- 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).
- 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.
- 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.
-
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).
- 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
- 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.
- 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.
- 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
- 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
- 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.
-
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.
- 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
- 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.
- 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.
- 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
- 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
- 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;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the first applicant;
- 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;
- 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
