TARON v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
1. The applicant, Mr Reinhold Taron, is a German national who was born in 1955 and lives in Drentwede. He was represented before the Court by Ms P. Nieweg, a lawyer practising in Steinhagen. The respondent Government were represented by their agent Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant lives outside residential building zones in a rural area that is primarily designated for agriculture. In July 2000, the Diepholz Administrative District (Landkreis) granted his neighbour a construction permit for an industrial poultry shed (Legehennenstall) some 265 metres from the applicant’s home. All appeals of the applicant and related applications to suspend execution of the permit were dismissed. The permit became final on 29 September 2003 when the Lower Saxony Administrative Court of Appeal refused the applicant’s request to be granted leave to appeal. 4. On 20 July 2005 the applicant lodged an action for reopening of the proceedings regarding the first shed with the Hannover Administrative Court. 5. The Hannover Administrative Court has not decided on this claim. 6. On 21 June 2004 the Diepholz Administrative District granted the applicant’s neighbour a permit according to the Federal Act on Protection against Emissions (Bundesimmissionsschutzgesetz) concerning the erection of a second industrial poultry shed some 580 metres from the applicant’s home. 7. The applicant objected on 25 June 2004. 8. On 26 July 2004 the Diepholz Administrative District allowed the applicant’s neighbour to make use of the permit despite the pending proceedings of the applicant. All four subsequent requests of the applicant to reinstate the suspensive effect of his objection with the Hannover Administrative Court were dismissed. 9. On 29 September 2005 the Hannover Administrative Court held that the numerous submissions of the applicant showed that he had become unable to properly represent himself and decided that he had no longer locus standi in the proceedings. The applicant’s related application for legal aid was rejected for lack of reasonable prospects. 10. On 15 February 2007 the applicant, represented by counsel, lodged an action for failure to act (Untätigkeitsklage) with the Hannover Administrative Court. 11. After the Diepholz Administrative District dismissed on 12 March 2007 the applicant’s objection of 25 June 2004 the applicant pursued his legal action and challenged the merits of this decision. 12. On 17 November 2008 the Administrative Court held an oral hearing and later on the same day dismissed the applicant’s claim as ill-founded. The court heard expert evidence on the environmental impact of the poultry farm, and also the applicant and the applicant’s neighbour. 13. On 8 and 28 January 2009 the applicant requested leave to appeal the judgment with the Lower Saxony Administrative Court of Appeal. 14. On 14 February 2011 the Lower Saxony Administrative Court of Appeal refused the applicant’s request to be granted leave to appeal. 15. On 7 December 2011 the Government informed the Court that in response to the pilot judgment Rumpf v. Germany (no. 46344/06, 2 September 2010) a federal Act against Protracted Court Proceedings and Criminal Investigations had entered into force on 3 December 2011. 16. In December 2011 the Court informed the applicant in the present case and other applicants in the same position of the enactment of a new domestic remedy. The Court referred to the case Brusco v. Italy ((dec.), no. 69789/01, ECHR 2001IX) and invited him to inform the Court whether he intended to make use of the new remedy within the time limit set by the transitional provision of that Act. 17. By letter of 17 February 2012 the applicant informed the Court in response that he considered it unacceptable to pursue yet another national remedy. He pointed out that his case had been already pending for four years with this Court in distinction from the factual situation in Brusco v. Italy, cited above. It would lead to further delay to initiate a new set of proceedings to which no national case-law exists. Finally, he requested that his application before the Court be maintained. 18. The Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, henceforth: the Remedy Act) was published in the Federal Law Gazette – Part I, 2011, page 2302 et seq. – on 2 December 2011 and entered into force the next day. 19. The Remedy Act introduces general provisions for civil and criminal cases in sections 198 to 201 of the Courts Constitution Act (Gerichtsverfassungsgesetz, henceforth: CCA). For specialised – such as at hand the administrative – jurisdictions only one provision was introduced in the respective codes of procedure, here Article 173 Sentence 2 of the Code of Administrative Procedure (Verwaltungsgerichtsordnung) referring to the general rules with marginal adaptions regarding the competent court. 20. The new remedy combines an instrument to expedite the proceedings, an objection to delay (Verzögerungsrüge), which has to be raised before the court whose proceedings are allegedly unduly delayed (henceforth: trial court), with a subsequent compensation claim to be lodged at the Court of Appeal (henceforth: compensation court), see section 198 paragraph 1 and 3 CCA. 21. According to section 198 paragraph 1 CCA a party to proceedings (Verfahrensbeteiligter) who suffers a disadvantage from protracted proceedings is entitled to adequate compensation. The amount depends on the length of the individual case taking into account its difficulty and importance as well as the conduct of the parties and relevant third persons. A compensation award is not dependent on the determination of fault. 22. The compensation is awarded in monetary form, if other forms of compensation for lengthy proceedings are not available. Another form of compensation may consist in the court pronouncing that there has been an unreasonable delay in proceedings, section 198 paragraph 4 CCA. 23. The compensation for one year of protraction amounts to 1,200 euros 24. A prior objection to delay before the trial court is a prerequisite for a subsequent compensation claim. The action for compensation may not be lodged with a compensation court until six months after the objection had been raised, see section 198 paragraph 5 CCA. The compensation claim must at the latest be lodged within six months of the final judicial decision of the trial court. 25. Proceedings for compensation are subject to court fees. However, the plaintiff will be reimbursed according to the quota of his success in court. 26. The judgment of the compensation court is subject to appeal on points of law (Revision) only. 27. According to its Article 23 the Remedy Act applies to pending as well as to terminated proceedings whose duration may still become or have already become the subject of a complaint with this Court. 28. In pending proceedings the objection to delay (Verzögerungsrüge) should be raised without delay when the Remedy Act entered into force. In these cases the objection preserves a subsequent compensation claim even for the past. 29. For terminated proceedings whose duration may still become or have already become the subject of a complaint with this Court it is not necessary to raise the objection prior to filing a compensation claim. The claim based on Article 23 of the Act has to be lodged with the competent court on 3 June 2012 at the latest.