PROCEDURE

The case originated in an application (no. 40009/04) 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 Hans-Georg von Koester and Mr Hans-Konrad von Koester (“the applicants”), on 8 November 2004.

Mr Hans-Georg von Koester is represented before the Court by the second applicant, Mr Hans-Konrad von Koester, who is a lawyer practising in Wiesbaden. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

The applicants alleged that the length of five sets of administrative proceedings and one set of official liability proceedings had been in breach of the reasonable time requirement laid down in Article 6 § 1.

On 16 September 2008 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the administrative and official liability proceedings to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1922 and 1957 respectively and live in Bonn and Wiesbaden.

1. Background to the case

The first applicant was the owner of a plot of land with a landmarked house at the corner of Rheinstrasse, a main traffic artery with six lanes, and a square known as “Luisenplatz” in Wiesbaden. In 1983/84 that square was reshaped and an underground car park was built close to the first applicant's property. Between 1988 and 1993 several events and demonstrations took place on the square which caused noise. Furthermore several new road traffic regulations in Wiesbaden city resulted in an increased volume of traffic next to the first applicant's property. He therefore instituted several different sets of proceedings against the Wiesbaden local authorities.

In the end of 1995 the first applicant agreed before a notary to transfer the property to his son, the second applicant. In 1997 the second applicant was listed as the real estate's owner in the land register (Grundbuch). The first applicant was granted a right of enjoyment over his son's property (Nießbrauch). The second applicant represented the first applicant throughout the proceedings before the German courts.

2. Proceedings relating to noise remediation measures

(a) Proceedings up to severance 8. On 29 April 1985 the second applicant asked the Wiesbaden trade supervision department (Gewerbeamt) to inform him whether there were plans to examine the influence of noise emissions on the first applicant's property. Between 1986 and 21 December 1990 the first applicant requested the Wiesbaden local authorities on several occasions to reimburse him the costs (notwendige Aufwendungen) incurred by him for noise remediation measures taken to protect him against noise caused by the construction works and, thereafter, the events and demonstrations carried out on Luisenplatz and by the increased volume of traffic. Furthermore he made official liability claims concerning his noise remediation measures and claimed damages for depreciation of his property. 9. On 2 April 1991 the first applicant lodged an action for failure to act (Untätigkeitsklage) with the Wiesbaden Administrative Court pursuant to section 75 of the Code of Administrative Court Procedures (see “Relevant domestic law” below) because the local authorities had not yet decided on his request of 21 December 1990. 10. On 4 June 1991 the Wiesbaden Administrative Court declared his action inadmissible. 11. On 14 August 1991 the first applicant appealed to the Hessen Administrative Court of Appeal. 12. On 3 January 1992 he submitted a statement of grounds, which the Administrative Court of Appeal sent to the defendants on 7 January 1992. 13. On 12 July 1996 the Administrative Court of Appeal asked the parties whether they would waive an oral hearing and consent to a decision by a single judge. On 22 April 1997 and on 20 July 1997 they gave their consent. 14. On 24 February 1998 the Administrative Court of Appeal severed the official liability claims and the claim for damages in relation to the depreciation of the property and gave them a new file number (14 UE 794/98). (b) Reimbursement of costs of noise protection measures (no. 4 E 299/91) 15. By a judgment of 24 February 1998 the Administrative Court of Appeal quashed the judgment of the Administrative Court of 4 June 1991 as to the reimbursement of costs for noise protection measures and referred the case to the Administrative Court for fresh consideration. 16. On 28 April 1998 the Administrative Court received the case files from the Administrative Court of Appeal. Between 14 May 1998 and 15 April 1999 it requested the first applicant on several occasions to make his submissions. 17. On 26 June 1999 the applicant informed the court that an extrajudicial settlement had been reached. On 1 September 1999 the court requested the parties to confirm that the case had been settled. After several further inquiries to the applicant as to whether the case had been settled, he made his submission on 30 March 2001. 18. On 10 December 2001 the Administrative Court held an oral hearing in which the question of the second applicant's third-party summons (Beiladung) was discussed. The sitting judge and the parties agreed that that summons was necessary. 19. On 11 December 2001 the Wiesbaden Administrative Court formally summoned the second applicant to participate in the proceedings as an interested third party. 20. By a judgment of 27 February 2002 the Administrative Court found for the applicants in part. That decision was served on the applicants on 12 and 13 March 2002. 21. On 10 April 2002 the applicants requested leave to appeal to the Hessen Administrative Court of Appeal. 22. On 21 October 2002 the Hessen Administrative Court of Appeal granted both applicants and the Wiesbaden local authorities leave to appeal. On 25 November 2002 the applicants submitted their statement of grounds for appeal. On 4 December 2002 the applicants received the defendant's statement of grounds together with the Administrative Court of Appeal's order to submit their reply to that statement by 6 January 2003. 23. On 20 December 2002 the applicants requested the Administrative Court of Appeal to extend the time-limit for further submissions, which it granted until 27 January 2003. The court declared that no further extensions could be granted. 24. On 26 March 2003, after holding an oral hearing on 18 March 2003, the Hessen Administrative Court of Appeal quashed the Administrative Court's judgment and dismissed the action. 25. On 30 May 2003 the applicants requested leave to appeal on points of law from the Federal Administrative Court. 26. On 3 September 2003 the Federal Administrative Court refused to grant the applicants leave to appeal on points of law. 27. On 27 October 2003 the applicants lodged a constitutional complaint, which the Federal Constitutional Court refused to admit on 3 May 2004, without giving any reasons. 28. On 10 May 2004 that decision was served on the applicants. (c) Official liability proceedings (7 O 58/98) 29. On 26 March 1998 the Hessen Administrative Court of Appeal found that the ordinary courts had been competent to decide on the compensation and official liability claims and referred them to the Wiesbaden Regional Court for adjudication. 30. Those proceedings were subsequently conducted by the Wiesbaden Regional Court under file number 7 O 58/98. 31. On 15 June 1998 the Regional Court requested the first applicant to pay the advance on the court fees which he did on 29 December 1999. 32. Between March 2000 and October 2000 the first applicant requested on several occasions extensions of the time-limits allowed for his submissions. 33. On 6 August 2001 the first applicant requested the court to stay the proceedings. 34. On 2 November 2002 he requested that a hearing scheduled by the Regional Court be postponed. 35. On 21 November 2002 the Regional Court stayed the proceedings at the first applicant's request until the termination of the administrative proceedings no. 4 E 299/91 before the Hessen Administrative Court of Appeal. 36. On 10 October 2003 the Regional Court scheduled a hearing on 12 January 2004. On a request by the first applicant on 22 December 2003 the Regional Court postponed the hearing to 16 February 2004. As nobody appeared at the hearing on behalf of the applicant, the Regional Court issued a default judgment. Following an objection by the applicant the proceedings were continued. On 14 June 2004 a hearing was held during which the first applicant again requested that the proceedings be stayed on grounds of other pending administrative proceedings. 37. On 9 August 2004 the Regional Court rejected that request and scheduled a hearing on 22 November 2004. 38. On 11 April 2005 the Regional Court informed the applicants that the first applicant's numerous statements of claim (Klageanträge) had not been substantiated, as he had neither indicated the concrete reason nor the concrete object of his claims within the meaning of Article 253 § 2 no. 2 of the Code of Civil Procedure (see “Relevant domestic law” below). Accordingly, the court ordered him to formulate his statements in accordance with these formal requirements. Otherwise the court would declare them inadmissible. 39. On 23 December 2005 the first applicant submitted his statements of claim. 40. On 16 January 2006 the Regional Court held an oral hearing during which it ordered a purely written procedure after the parties had given their consent to it. The court ordered the parties to make their final submissions by 27 February 2006 and scheduled a hearing to pronounce its decision on 27 March 2006. The second applicant joined the proceedings as an interested third party. 41. On 24 March 2006 the Regional Court postponed the hearing for the pronouncement of its decision to 13 April 2006 on account of the complexity of the case. 42. On 15 May 2006 the Regional Court requested the parties to give their consent to the written procedure, as their initial consent given on 16 January 2006 had only been valid for three months (until 16 April 2006) according to section 128 § 2 sentence 3 of the German Code of Civil Procedure (see “Relevant domestic law” below). 43. On 26 July 2006 the Regional Court scheduled a hearing on 2 October 2006. 44. On 27 September 2006 the Regional Court postponed the hearing to 24 November 2006 as the applicants had not acknowledged receipt of their summons. 45. During the hearing of 24 November 2006 the defendant argued that the applicants had failed to substantiate their claims and requested to be allowed to make submissions in reply to the applicants' further submissions of 17, 23 and 24 November 2006. Therefore the court postponed the hearing to 19 January 2007 and fixed a time-limit for the defendant's submissions on 15 December 2006. 46. During the hearing held on 19 January 2007 the parties again discussed the question whether the applicant's claims had been sufficiently substantiated and the court informed the applicants that it was for them to substantiate and to prove the amount of the damages claimed. The court granted both parties the opportunity to make further submissions by 9 February 2007 and scheduled the date for the pronouncement of its judgment on 2 March 2007. Prior to the hearing the applicants made six further submissions. Therefore, the Regional Court postponed the hearing to 18 April 2007. 47. On 18 April 2007 the court again requested the parties to give their consent to the written procedure as the court was not able to decide the case within three months. 48. On 8 August 2007 the court requested the parties again to give their consent to the written procedure. As the applicants failed to respond, the court scheduled a hearing for 26 October 2007. However, on 25 October 2007 the applicants gave their consent and the court cancelled the hearing. 49. On 31 October 2007 the Regional Court authorised both parties to make further written submissions by 14 December 2007 and scheduled a hearing for the pronouncement of a decision for 18 January 2008. 50. On 18 January 2008 the court postponed the hearing to 22 February 2008 “for service-related reasons” (aus dienstlichen Gründen). 51. On 20 February 2008 the Regional Court again requested the parties to give their consent to the written procedure, as it had overlooked that their consent of 25 October 2007 had only been valid until 25 January 2008, by which date the court would have had to pronounce its decision. Due to this procedural mistake the court cancelled the hearing scheduled on 22 February 2008 and requested the parties again to give their consent to the written procedure. After the court's further request of 31 March 2008 the applicants gave their consent on 14 April 2008. 52. On 21 April 2008 the Regional Court ordered the written procedure, granted the parties the opportunity to make submissions by 23 May 2008 and scheduled a hearing for the pronouncement of a decision on 11 July 2008. 53. On 11 July 2008 the Regional Court again informed the applicants (Hinweisbeschluss) that their statements of claim, which they had newly formulated and extended on several occasions, still failed to meet the formal requirements. It referred to its order of 11 April 2005 and concretised it by urging the applicants, inter alia, to substantiate their allegation that it was impossible for them to indicate the amount of damage caused by the alleged noise emissions. 54. That decision did not leave the Regional Court until 8 October 2008, when the court's registry provided the official copy of this decision with the court seal (Ausfertigungsvermerk). 55. On 13 March and 5 and 7 May 2009 the applicants made further submissions. 56. On 8 May 2009 the Regional Court held an oral hearing and scheduled a further hearing for the pronouncement of a judgment for 26 June 2009. 57. On 25 June and 24 July 2009 the Regional Court again postponed the hearing for the pronouncement of a judgment to 14 August 2009 on account of the complexity and difficulty of the case. 58. On 11 August 2009 the Regional Court again postponed the hearing and granted the defendant a further time-limit to make submissions by 28 August 2009. 59. These proceedings are still pending.

3. Proceedings relating to various traffic regulations

(a) Preliminary road closures (nos. 7 E 436/93(1) and 7 E 1208/99) i. Proceedings until severance 60. On 13 January 1992 the Wiesbaden local authorities ordered the preliminary closure of two streets, Friedrichstraße (order no. 4/92) and Luisenstraße (order no. 5/92). 61. On 20 February 1992 the first applicant lodged administrative appeals against both orders, and on 5 April 1993 he repeated his appeals. 62. On 28 May 1993 the first applicant lodged an action for failure to act with the Wiesbaden Administrative Court as the local authorities had not yet decided upon his administrative appeals of 20 February 1992 and 5 April 1993. 63. On 2 June 1993 the Administrative Court requested the authorities to submit their files. On 22 November 1993 it repeated its request. 64. On 6 January 1994 the defendant announced that they would submit their observations by the end of January 1994. On 11 February 1994 the court reminded the defendants to make their submissions. 65. On 22 February 1995 the Administrative Court inquired of the first applicant whether, in the light of the termination of a set of parallel pending proceedings for interim legal protection concerning the same legal issue, he wished to declare the proceedings disposed of. As the applicant failed to respond, the Administrative Court noted on 24 January 1997 that the proceedings were deemed to have been disposed of as the applicant had not pursued the proceedings for a period of more than six months. 66. On 8 April 1999 the first applicant declared that the proceedings had not entirely been disposed of. 67. On 2 September 1999 the Wiesbaden Administrative Court severed the proceedings concerning the preliminary closure of Luisenstraße and pursued them under file number 7 E 1208/99. ii. Proceedings no. 7 E 436/93(1) 68. On 24 January 2000 the Administrative Court assigned the proceedings relating to the closure of Friedrichstraße (file no. 7 E 436/93(1)) to a single judge. 69. On 28 January 2000 the second applicant was summoned to the proceedings as a third party. 70. On 23 February 2000 the applicants sought withdrawal of the judges of the Administrative Court sitting in their case for bias. On 20 April 2000 the applicants also sought withdrawal of the judge who was to decide on their bias challenge; the latter was rejected on 2 June 2000. 71. On 4 September 2000 the applicants were informed that the composition of the court had changed following an amendment to the courts' rules of procedure (Geschäftsordnung). 72. On 15 September 2000 the applicants also sought withdrawal of the new judges sitting in their case for bias. On 10 October 2000 the applicants requested an extension of the time-limit for submissions concerning the comments given by the challenged judges on their alleged bias (dienstliche Stellungnahme). On 8 November 2000 the applicants made their announced submissions. 73. On 5 and 14 February 2002 the challenged judges again commented on their alleged bias. 74. Between 28 March 2002 and 23 January 2003 the applicants repeatedly requested extensions of the time-limits allowed for making further submissions on their request for bias, which were all granted until 17 February 2003, when the applicants submitted their further reasons. 75. On 25 February 2003 the Administrative Court rejected the applicants' bias challenge of 15 September 2000 as an abuse of process. 76. The applicants' subsequent challenges for bias of 9 and 16 April 2003 were also rejected on 14 and 22 April 2003 for abuse of process. 77. By a judgment of 23 April 2003 the Administrative Court declared the action inadmissible. iii. Proceedings no. 7 E 1208/99 78. On 31 January 2000 the second applicant was summoned to the proceedings as a third party. 79. On 7 February 2002 the Administrative Court noted that the court files had been dispatched to several other chambers of the Administrative Court for consultation in connection with procedures related to objections on the grounds of bias lodged by the applicants in other proceedings. 80. On 12 December 2002 the rapporteur of the Administrative Court changed. 81. On 13 March 2003 the Administrative Court assigned the proceedings to a single judge. 82. On 9 and 16 April 2003 the applicants lodged two objections for bias, which were rejected on 14 and 22 April 2003. 83. By a judgment of 23 April 2003 the Administrative Court declared the action inadmissible. (b) Final road closures and installation of a parking meter (no. 7 E 320/99) 84. On 20 July 1994 the Wiesbaden local authorities ordered the final closure of parts of Luisenstrasse and of Friedrichstrasse to motor traffic. 85. On 12 September 1994 both applicants lodged an administrative appeal against that decision, arguing that the road closures resulted in increased traffic close to their property, which caused unbearable noise. 86. On 22 April 1998 the Wiesbaden local authorities ordered the installation of a parking meter (Parkautomat) in Luisenstrasse. 87. On 8 March 1999 the Darmstadt regional authorities dismissed an administrative appeal by the applicants against that decision by the local authorities. 88. On 12 April 1999 the applicants lodged an action with the Wiesbaden Administrative Court against the decisions of 22 April 1998 and 8 March 1999. Furthermore they lodged an action for failure to act because the local authorities had not yet decided upon their administrative appeal against the local authorities' decision of 20 July 1994. 89. On 4 February 2002 the Administrative Court noted that the court files had been dispatched to another chamber of the Administrative Court for consultation in respect of the proceedings no. 7 E 436/93. 90. On 25 February 2003 the parties were summoned to an oral hearing. 91. On 13 March 2003 the Administrative Court assigned the proceedings to a single judge. 92. On 10 and 16 April 2003 the applicants challenged the sitting judge for bias; these requests were dismissed on 14 and 22 April 2003. 93. On 23 April 2003 the Administrative Court dismissed the applicants' action. It found that the road closures had not resulted in a violation of the applicants' property rights. (c) Conversion of two streets into a pedestrian zone (no. 7 E 710/98) 94. On 7 September 1994 the Wiesbaden local authorities converted parts of Luisenstrasse and Friedrichsstrasse into a pedestrian area (Teileinziehungsverfügungen). 95. On 12 September 1994 the first applicant lodged an administrative appeal against that decision. 96. On 13 June 1998 the first applicant lodged an action for failure to act as no decision had been taken on his administrative appeal of 12 September 1994. 97. On 7 June 1999 the second applicant was summoned to the proceedings as a third party. 98. On 4 February 2002 the rapporteur of the Administrative Court gave instructions that in the subsequent period the court file had been requested for consultation in other proceedings which the applicants were pursuing at the Administrative Court and in which decisions had to be taken regarding challenges for bias. 99. On 12 December 2002 the rapporteur of the Administrative Court changed. 100. On 25 February 2003 the parties were summoned to an oral hearing. On 13 March 2003 the Wiesbaden Administrative Court assigned the proceedings to a single judge. 101. On 9 and 16 April 2003 the applicants challenged the sitting judge for bias; these requests were dismissed on 14 and 22 April 2003. 102. On 23 April 2003 the Administrative Court dismissed the action. (d) Proceedings before the Hessen Administrative Court of Appeal and before the Hessen Constitutional Court 103. On 4 June 2003 the applicants requested leave to appeal from the Hessen Administrative Court of Appeal in respect of the proceedings nos. 7 E 436/93(1), 7 E 1208/99, 7 E 320/99, and 7 E 710/98. 104. On 30 January 2004 the Hessen Administrative Court of Appeal refused to grant the applicants leave to appeal in respect of the proceedings no. 7 E 710/98. 105. On 2 February 2004 it refused to grant them leave to appeal concerning the proceedings nos. 7 E 436/93(1), 7 E 1208/99, 7 E 320/99. 106. On 5 March 2004 the applicants lodged a constitutional complaint against the administrative courts' decisions rendered in the aforementioned proceedings with the Hessen Constitutional Court. Furthermore they accused Judge G. of that court of being biased, as he had acted as the judge in other proceedings involving the applicants at the Wiesbaden Administrative Court. 107. On 11 August 2004 the Hessen Constitutional Court dismissed their objections against Judge G. as being unfounded. 108. On 12 May 2005 the Hessen Constitutional Court refused to admit the applicants' constitutional complaint without giving any reasons. 109. On 23 May 2005 that decision was served on the applicants.