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FIFTH
SECTION
CASE OF JESSE v. GERMANY
(Application
no. 10053/08)
JUDGMENT
STRASBOURG
22
December 2009
This
judgment is final but it may be subject to editorial revision.
In the case of Jesse v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Karel Jungwiert, President,
Mark
Villiger,
Isabelle Berro-Lefèvre, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having deliberated in private on 1
December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 10053/08) 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 Klaus Peter Jesse and Mrs Sonja
Jesse (“the applicants”), on 24 February 2008.
- The
German Government (“the Government”) were represented by
their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of
the Federal Ministry of Justice.
- On
25 August 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. The Federal Republic of Germany having
accepted the provisional application of the provisions of Protocol 14
governing the power of three judge committees to decide on cases in
which there is well-established case-law, it was decided to assign
the application to a Committee. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The applicants were both born in 1952 and live in
Gießen.
- The facts of the case, as submitted by the parties, may
be summarised as follows.
A. Preceding administrative proceedings
- In September 1997 the applicants and their neighbour
filed a request with the Gießen administrative authorities
(“the administration”) seeking permission to cut down
their neighbour's tree which, according to an expert opinion obtained
by the applicants, was causing damage to their house.
- On 19 November 1997 the administration rejected this
request.
On 9 March 1998, on the applicants' administrative
appeal, the administration granted permission to cut down the tree on
the ground that they could not exclude the possibility that the
damage to the house had been caused by the tree.
- Subsequently, the applicants' neighbour refused to cut
down the tree.
B. Proceedings before the Gießen Regional Court
- In
August 1998 the applicants requested the Gießen Regional Court
to order their neighbour to cut down the tree.
- On
23 November 1998, following submissions by the defendant, who also
presented an expert report, the court decided to obtain an expert
opinion from a Dr Str. On 30 January 1999 Dr Str. submitted his
report.
- On
3 May 1999, following a hearing, the Gießen Regional Court
decided that the applicants' neighbour had to cut down the tree or
take other measures to prevent the earth from drying out.
C. Proceedings before the Frankfurt/Main Court of Appeal
- On
29 June 1999 the applicants' neighbour appealed. She also submitted
another expert opinion.
- On
28 July 1999 the Frankfurt/Main Court of Appeal, on provision of a
security by the neighbour, stayed the proceedings for enforcement of
the first-instance judgment. Subsequently, the case was transferred
to a single judge.
- On
9 August 1999 the court scheduled a hearing for 12 November 1999.
That day it decided to obtain an expert opinion.
On
10 January 2000 it commissioned Professor K., an expert on
construction matters.
- On
11 January 2000 the applicants lodged a subsequent appeal
(Anschlussberufung).
- On
2 February 2000 the court amended its decision regarding the taking
of evidence. Subsequently, it also requested a further advance.
On
26 March 2000 the applicants paid the requisite advance. A
few days later they questioned the expert's qualification. On 26
April 2000 the court sent the files to the expert.
- On
25 August 2000, following comments made by the expert about the
applicants' objections against him, the court mandated Professor K.
to proceed with the report. On 22 September 2000 Professor K.
informed the court about the cost of his services (which amounted to
about
25,000 euros (EUR)).
- In
November 2000 the court requested the files from the expert and on 9
February 2001, on appeal by the defendant, it quashed a decision of
the Gießen Regional Court concerning the enforcement
proceedings.
- On
23 February 2001 the court proposed to the applicants that, in view
of the exceptionally high costs claimed by Professor K., evidence
should be taken by other means and proposed a Dr S., a landscaping
expert.
- On
12 March 2001 the applicants opposed the proposal since, in their
view, Professor K.'s report was indispensable. They also opposed the
choice of Dr S. on the grounds that he had been proposed by the
defendant, knew the defendant's son and it could be assumed that he
had been talking with him about the case.
- At
the subsequent hearing on 20 April 2001 the applicants requested Dr
S. to declare that he did not have any personal ties with the
defendant or her son and had not dealt with the case before. On 29
June 2001, following this declaration by Dr S., the court
commissioned Dr S. to provide an expert opinion.
- On
4 November 2001 the court asked the applicants to comment on a
statement by Dr S. dated 6 August 2001. In December 2001 the expert
requested a further advance. On 11 July 2002 he submitted his report.
He came to the conclusion that the tree had not caused the damage
to the house.
- On
29 August 2002, following the applicants' submissions, the court
asked Dr S. and the first-instance expert, on condition of the
payment of a further advance, to explain and supplement their
reports. In October 2002 it amended its decision; in November 2002 it
requested a further advance.
On 20 January 2003 it transferred
the files to Dr S.
- In
April 2003 the court requested a further advance of EUR 500 from both
parties. On 1 August 2003, at the request of the applicants, it
further amended the order regarding the taking of evidence.
On
29 August 2003 the defendant paid the advance. The court
then requested the expert to continue with his report.
- In
June 2004 Dr S. submitted his supplementary report. The court then
transferred the files to the parties for further submissions.
- On
23 June 2004 the applicants requested the court to transfer the case
from the single judge to a bench.
- On
2 September 2004 the court scheduled a hearing for 6 October 2004.
It later had to be postponed to 3 November 2004 owing to the absence
of the parties' legal counsels. At the hearing, the court
(again
composed of three judges) established that a report by a construction
expert was necessary in order to reach a decision. It also encouraged
the parties to reach a friendly settlement in view of the high costs
claimed by Professor K. None of the experts were summoned.
- On
22 December 2004 the court decided that, in view of the additional
submissions, further evidence should be obtained by Dr S. as regards
the position of the roots of the tree. It also requested an advance
of EUR 2,000.
- In
February 2005 the applicants asked the court to amend this decision.
This however was rejected in March 2005 and again later on a renewed
request. In April 2005 the court confirmed that the applicants had
already paid the advance (requested again in March) on 5 January
2005.
- On
19 October 2005 a local inspection took place.
- By
a letter dated 21 January 2006 the applicants lodged a constitutional
complaint on account of the length of the proceedings.
On
9 February 2006 the Federal Constitutional Court refused to
accept the constitutional complaint for adjudication. It found that
there was no indication of a violation of the applicants' rights.
- On
20 March 2006 the Court of Appeal requested another advance of EUR
28,500. In June 2006 it again refused to amend its decision regarding
the taking of evidence; also in June 2006 the applicants paid the
advance.
- On
10 October 2006 the expert informed the parties that the local
inspection (which required free access to the applicants' cellar)
should take place on 9 November 2006. At the applicants' request, it
was postponed to 22 January 2007.
- On
20 February 2007 the expert submitted an interim report;
on
12 July 2007 he submitted his final report.
- On
14 September 2007 the court scheduled the hearing.
On 19 December
2007 the Frankfurt/Main Court of Appeal ordered the neighbour to cut
down the tree.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the proceedings 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, even though they conceded that the overall duration of
the proceedings was particularly long (and admitted that periods of
between 9 weeks and 12 months were attributable to the national
authorities), contested that argument. They adduced in particular
that the case was factually complex, that the dispute between the
parties had been conducted acrimoniously and that the proceedings
were protracted primarily by the applicants' opposition to the
appointed experts and the numerous submissions of both parties, which
required decisions to be amended and also resulted in the repeated
need to request a further advance.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The period to be taken into consideration
- The applicants argued that the administrative
proceedings concerning permission to cut down the tree were a
precondition for the civil proceedings and were therefore also to be
taken into consideration.
The Government contested this view.
- The
Court finds that, even though the applicants reasonably first
obtained the administrative permission to cut down the tree, these
proceedings nonetheless were not, in the strict sense, a precondition
for the introduction of the claim with the civil courts, but a
different set of proceedings which would have had to be further
pursued before the administrative courts. The proceedings to be taken
into consideration therefore began in August 1998 when the applicants
lodged their claim with the Gießen Regional Court. The
proceedings ended on 19 December 2007 when the Frankfurt/Main Court
of Appeal decided in the applicants' favour. The proceedings thus
lasted for about nine years and four months at two levels of
jurisdiction.
2. The reasonableness of the length of the proceedings
- 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.
In particular, while noting that the case was of a certain
complexity and that the applicants caused delays by challenging both
experts named, the Court cannot ignore that the case was pending for
eight and a half years before the Frankfurt/Main Court of Appeal
alone. It finds that this court failed to prosecute the proceedings
diligently – in particular, it never set the experts any
time-limits or enquired about the state of the reports – and
that the Government did not submit any convincing reasons justifying
their argument that the repeated requests for further advances had
been unavoidable.
- Having
regard to its case-law on the subject, the Court therefore 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.
II. 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 applicants claimed 1,177.92 euros (EUR) in respect
of pecuniary and EUR 4,000 in respect of non-pecuniary damage. As
regards the pecuniary damage, they submitted that, in 1999, as
security for the preliminary enforcement of the first-instance
judgment, they had been required to provide a bank guarantee which
was only returned in 2007 and caused them to incur yearly fees of EUR
294.48. As documentary evidence, they submitted this guarantee; they
also informed the Court that they had lodged a claim with a national
court to reclaim those costs from their neighbour.
- The
Government did not express an opinion on the pecuniary damage claimed
but contested the claim for non-pecuniary damage.
- As
regards the special fees claimed, the Court finds that, irrespective
of the fact that such a claim is apparently still pending before a
national court, the applicants, who merely submitted the bank
guarantee, have not sufficiently substantiated that they actually
incurred the amount claimed, or that the failure of the applicants'
neighbour to return the bank guarantee had been caused by the length
of the proceedings and was attributable to the State. On the other
hand, the Court considers that the applicants must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards them
the full sum claimed.
B. Costs and expenses
- The
applicants also sought EUR 1,770.86, corresponding to the fees of
their lawyer mandated in 2005 in the proceedings before the
Frankfurt/Main Court of Appeal. Enclosing a corresponding bill dated
17 February 2005, they submitted that, had the proceedings been
concluded within four or five years, they would not have had to
change their legal counsel.
- In
the Government's view, the costs for the change of their legal
counsel could not be claimed since the applicants had not
demonstrated why a change of legal counsel had been necessary.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court does not
discern a causal link between the violation found and the pecuniary
damage alleged in respect of the change of the legal counsel; it
therefore rejects this claim. As the applicants failed to submit a
claim for costs and expenses incurred in the proceedings before this
Court, the Court does not make an award under this head either.
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 the complaint concerning the excessive
length of the proceedings admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months,
EUR 4,000 (four thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 22 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Karel Jungwiert
Deputy Registrar President
