In the case of Pammel v. Germany (1),
 
      The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court B (2), as a Chamber composed of
the following judges:
 
      Mr   R. Ryssdal, President,
      Mr   R. Bernhardt,
      Mr   I. Foighel,
      Mr   R. Pekkanen,
      Mr   M.A. Lopes Rocha,
      Mr   L. Wildhaber,
      Mr   K. Jungwiert,
      Mr   U. Lohmus,
      Mr   J. Casadevall,
 
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
 
      Having deliberated in private on 23 January and 29 May 1997,
 
      Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
 
1. The case is numbered 48/1996/667/853. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission. 2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
 
PROCEDURE
 
1. The case was referred to the Court by a German national,
Mr Friedrich Wilhelm Pammel ("the applicant"), on 21 March 1996, and
by the Government of the Federal Republic of Germany ("the Government")
on 27 March 1996, within the three-month period laid down by Article 32
para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It originated in an application (no. 17820/91) against Germany
lodged by Mr Pammel with the European Commission of Human Rights
("the Commission") under Article 25 (art. 25) on 15 August 1990. The applicant's application bringing the case before the Court
referred to Article 48 of the Convention (art. 48), as modified by
Protocol No. 9 (P9), which Germany has ratified; the Government's
application referred to Articles 32 and 48 of the Convention (art. 32,
art. 48). The object of the applications was to obtain a decision as
to whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 6 para. 1 of the Convention
(art. 6-1). 2. On 21 March 1996 the applicant designated the lawyer who would
represent him (Rule 31 of Rules of Court B). The President gave the
lawyer leave to use the German language in both the written and the
oral proceedings (Rule 28 para. 3). The applicant, who was initially
designated by the letters F.W.P., subsequently consented to the
disclosure of his identity. 3. The Chamber to be constituted included ex officio
Mr R. Bernhardt, the elected judge of German nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4). On 30 March 1996, in the presence of the
Registrar, Mr Ryssdal drew by lot the names of the other seven members,
namely Mr I. Foighel, Mr R. Pekkanen, Mr M.A. Lopes Rocha,
Mr L. Wildhaber, Mr K. Jungwiert, Mr U. Lohmus and Mr J. Casadevall
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43). 4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Government, the
applicant and the Delegate of the Commission on the organisation of the
proceedings (Rules 39 para. 1 and 40). Pursuant to the order made in
consequence, the Registrar received the applicant's memorial on
18 October 1996 and the Government's memorial on 21 October 1996. On 2 September 1996 the Commission had produced various documents
relating to the proceedings before it, as requested by the Registrar
on the President's instructions. On 5 November 1996 the Secretary to the Commission informed the
Registrar that the Delegate would present his submissions at the
hearing. 5. On 29 October 1996 Mr Ryssdal had decided, in the interests of
the proper administration of justice and in accordance with Rule 21
para. 6, to allocate the case of Probstmeier v. Germany to the Chamber
already constituted to hear the present case. 6. On 2 December 1996 the Government requested the Chamber to
relinquish jurisdiction immediately in favour of a Grand Chamber
(Rule 53). On 20 January 1997 the Chamber decided not to accede to
that request. 7. In accordance with the decision of the President, who had also
given the Government's Agent leave to plead in German (Rule 28
para. 2), the hearing concerning this case and the case of Probstmeier
v. Germany took place in public in the Human Rights Building,
Strasbourg, on 20 January 1997. The Court had held a preparatory
meeting beforehand. There appeared before the Court:
 
(a)   for the Government
 
      Mrs  H. Voelskow-Thies, Ministerialdirigentin,
           Federal Ministry of Justice,                        Agent,
      Mr   M. Weckerling, Regierungsdirektor,
           Federal Ministry of Justice,
      Mr   E. Radzwill, Regierungsrat zur Anstellung,
           Federal Ministry of Justice,                     Advisers,
 
(b)   for the Commission
 
      Mr   B. Marxer,                                       Delegate;
 
(c)   for the applicant
 
      Mr   C. Lenz, of the Stuttgart Bar,                    Counsel;
 
(d)   for Mrs Probstmeier
 
      Mr   P. Kloer, of the Munich Bar,                      Counsel. The Court heard addresses by Mr Marxer, Mr Lenz, Mr Kloer and
Mrs Voelskow-Thies. At the hearing Mrs Voelskow-Thies also sought leave to reply in
writing to the claims under Article 50 (art. 50) lodged by the
applicant and Mrs Probstmeier. By an order of 24 January 1997 the
President granted her request. The Registrar received the Government's
supplementary memorial on 13 February 1997, Mrs Probstmeier's
observations in reply on 24 February and Mr Pammel's observations in
reply on 28 February. AS TO THE FACTS
 
I. Circumstances of the case
 
8. Mr Friedrich Wilhelm Pammel, a German national born in 1933, is
a retired civil servant currently living in Hanover. 9. In 1971 he inherited a plot of land 85,457 sq. m in area leased
to the Höxter town council in 1949 to be used as allotment gardens. The initial lease ran until 30 September 1958. By a clause
subsequently added to the lease, this was extended to
30 September 1978. From 1 October 1955 the rent (Pachtzins) amounted
to 0.04 German marks (DEM) per square metre per year. The Höxter town council leased the land to the
Höxter Allotment Garden Association (Kleingartenverein), which, in its
turn, sub-let it to individual tenants. The Land Government fixed the rent at DEM 0.08 per square metre
per year with effect from 1 January 1977. A. The proceedings in the administrative courts
 
10. On 18 September 1978 the applicant applied to the
Minden Administrative Court (Verwaltungsgericht) contesting the rent
fixed by the Land Government and requesting the Administrative Court
to refer to the Federal Constitutional Court (Bundesverfassungsgericht)
the question of the constitutionality of the provisions of the
1919 Allotment Gardens Act (Kleingartenordnung) concerning rents. 11. On 31 January 1980 the Administrative Court referred the case to
the Federal Constitutional Court in accordance with Article 100 para. 1
of the Basic Law (Grundgesetz) (see paragraph 34 below). 12. In a letter of 15 May 1985 the Federal Constitutional Court asked
the Administrative Court to reconsider its decision to refer the case
(Vorlagebeschluß), to expand it if need be or to revoke it. 13. On 22 May 1985 the Administrative Court withdrew its request for
a reference and gave judgment against the applicant. The applicant appealed against the above judgment to the
Münster Administrative Court of Appeal (Oberverwaltungsgericht). 14. In a judgment of 16 May 1988 the Administrative Court of Appeal
set aside the judgment of the Administrative Court and the impugned
decision of the Land Government fixing the rent. B. The proceedings in the civil courts
 
15. In a letter of 16 March 1976 the applicant terminated the lease
with effect from 30 September 1978. He subsequently repeated the
notice of termination several times. 16. On 23 May 1980 the applicant brought proceedings in the
Paderborn Regional Court (Landgericht) seeking an order for possession
(Räumung) against the Höxter town council and the
Allotment Garden Association. 17. On 14 August 1980 the Regional Court decided to stay the
proceedings (das Verfahren auszusetzen) following a judgment of the
Federal Constitutional Court of 12 June 1979 in which it had been held
that some of the provisions of the Allotment Gardens Act concerning the
termination of leases were unconstitutional. 18. The new Federal Allotment Gardens Act (Bundeskleingartengesetz)
of 28 February 1983, came into force on 1 April 1983, and the
proceedings in the Regional Court were resumed at the applicant's
request on 17 March 1983. 19. From 6 June 1983 to 20 August 1985 the Regional Court stayed the
proceedings (das Verfahren ruhen lassen) on the ground that the
Höxter town council intended to draw up a land-use plan (Bebauungsplan)
designating the land in question as a "permanent allotment garden zone"
(Fläche für Dauerkleingärten - see section 16 (4) of the
Federal Allotment Gardens Act, paragraph 30 below). 20. On 7 November 1985 the Regional Court, after holding a hearing
at Mr Pammel's request, granted his application in part. It ordered
the whole site to be returned to him, not immediately, but on
31 March 1987, in accordance with section 16 (3) of the
Federal Allotment Gardens Act (see paragraph 30 below). In addition,
it held that this provision was compatible with Article 14 of the
Basic Law (see paragraph 29 below) and refused to refer the case to the
Federal Constitutional Court as the applicant had requested. 21. The defendants, namely the Höxter town council and the
Allotment Garden Association, appealed against the above judgment to
the Hamm Court of Appeal (Oberlandesgericht). 22. On 18 December 1986 the Höxter town council adopted the land-use
plan it had announced (see paragraph 19 above). The
administrative authorities' decision approving this plan was published
on 14 March 1987. 23. On 20 May 1987 the Court of Appeal decided to stay the
proceedings and refer the case to the Federal Constitutional Court,
submitting the following two questions:
 
      "1. Is it compatible with Article 14 of the Basic Law for a
      lease granted by a private lessor before the entry into force of
      the Federal Allotment Gardens Act of 28 February 1983, for a
      fixed term due to expire before the Act came into force, and in
      respect of allotment gardens which are not permanent, to expire
      only on 31 March 1987 pursuant to section 16 (3) of the Act?
 
      and, if so,
 
      2. Is it compatible in such a case with Article 14 of the
      Basic Law for the lease referred to in the first sentence of
      section 16 (4) of the Allotment Gardens Act to be extended for
      an indefinite period where a local authority has adopted a
      land-use plan designating a zone to be used for 'permanent
      allotment gardens' before expiry of the lease as defined in
      section 16 (3) of the Act?"
 
      The Court of Appeal held that the question of the
constitutionality of section 16 (3) and, in the event of the latter
being pronounced compatible with the Basic Law, of section 16 (4) of
the Federal Allotment Gardens Act was decisive for the outcome of the
proceedings. The contractual relation between the plaintiff and the
defendants would continue, in spite of the termination of the lease on
30 September 1978, if it had been extended:
 
      - initially until 31 March 1987, pursuant to section 16 (3) of
the Federal Allotment Gardens Act and
 
      - subsequently under the land-use plan of 18 December 1986 for
an indefinite period, pursuant to the first sentence of section 16 (4)
of the Act. C. The proceedings in the Federal Constitutional Court
 
24. On 26 June 1987 the Court of Appeal referred the case to the
Federal Constitutional Court, in accordance with the first sentence of
Article 100 para. 1 of the Basic Law (see paragraph 34 below). 25. In the meantime, on 24 May 1985, the Federal Court of Justice
(Bundesgerichtshof) had referred to the Federal Constitutional Court
the question concerning the constitutionality of section 16 (3) of the
Federal Allotment Gardens Act raised in the Probstmeier case (see the
Probstmeier v. Germany judgment of 1 July 1997, Reports of Judgments
and Decisions 1997-IV). 26. The Federal Constitutional Court decided to join the two cases. 27. In a letter of 16 November 1990 the Federal Constitutional Court
informed the applicant that because of its caseload, which had
increased after the reunification of Germany, judgment would not be
given on the question of the constitutionality of the provisions of the
Federal Allotment Gardens Act before 1991. 28. After receiving the observations made by the Minister for
Town and Country Planning (Raumordnung, Bauwesen und Städtebau) on
behalf of the Federal Government, and those of the Organisation of
German Towns (Deutscher Städtetag), four other non-governmental
organisations, the parties and the Federal Court of Justice, the
Federal Constitutional Court decided to extend the review of
constitutionality so as to embrace the first sentence of section 5 (1)
of the Federal Allotment Gardens Act (see paragraph 30 below). On 23 September 1992 the First Division (Erster Senat) of the
Federal Constitutional Court gave judgment (Reports of the Decisions
of the Federal Constitutional Court, BVerfGE, vol. 87, pp. 114-51). It held that, pursuant to the transitional provisions of
section 16 of the Act, rent control continued to apply during the
period for which former fixed-term leases had been extended. The Federal Constitutional Court held that section 16 (3) and the
first sentence of section 16 (4) of the Federal Allotment Gardens Act
were constitutional, but pointed out that section 16 (3) had to be
interpreted in a manner consistent with the Basic Law. On the other
hand, it decided that the rent control provided for in the
first sentence of section 5 (1) of the Act was contrary to the
first sentence of Article 14 para. 1 of the Basic Law, in so far as it
concerned leases granted by private lessors, since it imposed an
excessive and disproportionate burden on lessors. II. Relevant domestic law
 
    A. Substantive law
 
29. Article 14 para. 1 of the Basic Law provides:
 
      "Property and the right of succession shall be guaranteed. Their
      content and limits shall be laid down by law."
 
30. The relevant provisions of the Federal Allotment Gardens Act of
28 February 1983, which came into force on 1 April 1983, are worded as
follows:
 
                             Section 5 (1)
 
      "The rent shall be not more than twice the rent for a lease
      granted in the same locality for a market garden producing fruit
      or vegetables, depending on the total area of the allotment. The
      areas allocated to amenities for common use shall be taken into
      account when the amount payable in rent for each allotment is
      calculated."
 
                              Section 16
 
      "1. Allotment leases which have not expired by the date of the
      entry into force of the present Act shall be governed by the
      present Act from the date of its entry into force. 2. Leases granted before the entry into force of the
      present Act in respect of allotments which, on the date of the
      Act's entry into force, are not 'permanent' gardens shall be
      deemed leases in respect of 'permanent' gardens where the owner
      of the land is the local authority. 3. Where the leases referred to in subsection 2 concern plots
      of land not owned by the local authority, they shall expire on
      31 March 1987 if they have been granted for a fixed term expiring
      before that date, otherwise they shall run for the term agreed. 4. Where, before expiry of the lease as provided for in
      subsection 3, the land occupied by an allotment garden has been
      designated in the land-use plan as land for 'permanent' allotment
      gardens, the lease shall be extended for an indefinite period. Where the local authority has decided, before 31 March 1987, to
      draw up a land-use plan with a view to designating the land to
      be used for 'permanent' allotment gardens and has made its
      decision public in accordance with the second paragraph of
      Article 2 para. 1 of the Town Planning Code (Baugesetzbuch), the
      lease shall be extended for four years with effect from the date
      of publication of that decision, the period between the date
      agreed for expiry of the lease and 31 March 1987 being taken into
      account. The provisions relating to 'permanent' allotment
      gardens shall apply with effect from the date on which the
      land-use plan becomes final."
 
31. Following the Federal Constitutional Court's judgment of
23 September 1992 a new law amending the Federal Allotment Gardens Act
(Bundeskleingartenänderungsgesetz) came into force on 1 April 1994. 32. Section 5 (1) of this new law reads:
 
      "The rent shall be not more than four times the rent for a lease
      granted in the same locality for a market garden producing fruit
      or vegetables, depending on the total area of the allotment. The
      areas allocated to amenities for common use shall be taken into
      account when the amount payable in rent for each allotment is
      calculated."
 
33. The transitional provisions of the law in question provide that
in all cases where proceedings were pending on 1 November 1992 but
where there has been no final judgment fixing the amount of rent
payable, private lessors may retrospectively claim four times the rent
for a lease granted in the same locality for a market garden producing
fruit or vegetables, with effect from the first day of the month
following the commencement of the proceedings. B. Procedural law
 
      1. The Basic Law
 
34. Article 100 para. 1 of the Basic Law provides as follows:
 
      "Where a court considers unconstitutional a law whose validity
      is relevant to its decision, the proceedings shall be stayed and
      the question submitted ... to the Federal Constitutional Court
      if the present Basic Law is considered to have been breached ..."
 
      2. The Federal Constitutional Court Act
 
35. The composition and functioning of the
Federal Constitutional Court are governed by the Federal Constitutional
Court Act (Gesetz über das Bundesverfassungsgericht). 36. According to section 2 of the Act, the
Federal Constitutional Court is constituted in two divisions, each
composed of eight judges. 37. Sections 80 to 82 concern review of constitutionality in
connection with a specific case (Konkrete Normenkontrolle), and are
worded as follows:
 
                              Section 80
 
      "1. Where the requirements of Article 100 para. 1 of the
      Basic Law are met, a court shall apply directly to the
      Federal Constitutional Court for a decision. 2. In the reasons for its application the court must state in
      what respect its decision depends on the validity of the
      legislative provision in issue and what higher-ranking legal rule
      it is incompatible with. The application must be accompanied by
      the file. 3. The application by the court shall be independent of any
      complaint by a party to the proceedings that the legislative
      provision in issue is null and void."
 
                              Section 81
 
      "The Federal Constitutional Court shall determine only the point
      of law."
 
                              Section 82
 
      "1. The provisions of sections 77 to 79 shall apply
      mutatis mutandis. 2. The constitutional organs named in section 77 may join the
      proceedings at any stage. 3. The Federal Constitutional Court shall also give the
      parties to the proceedings before the court which has made the
      application the opportunity to state their views; it shall invite
      them to participate in the oral proceedings and shall permit the
      legal representatives present to address it. 4. The Federal Constitutional Court may ask the highest
      federal courts of justice or the highest Land courts to state:
      how and on the basis of what considerations they have hitherto
      interpreted the Basic Law with regard to the point in question;
      whether, and if so how, they have applied the legal provision in
      issue in previous cases; and what related points of law, in their
      opinion, remain to be determined. It may also ask them for their
      views on a point of law that has a bearing on its decision. The
      Federal Constitutional Court shall communicate these submissions
      to the bodies authorised to state their views."
 
38. Sections 77 to 79, to which section 82 refers, provide:
 
                              Section 77
 
      "The Federal Constitutional Court must give the Bundestag, the
      Bundesrat, the Federal Government and in addition, where there
      are differences of opinion concerning the validity of
      federal law, the Land Governments or, where there are differences
      of opinion concerning the validity of a provision of Land law,
      the Parliament and Government of the Land in which that provision
      was promulgated, the opportunity to state their views [on the
      matter] within a specified period."
 
                              Section 78
 
      "Where the Federal Constitutional Court comes to the conclusion
      that a provision of federal law is incompatible with the
      Basic Law or that a provision of Land law is incompatible with
      the Basic Law or any other part of federal law, it shall declare
      that provision null and void. Where further parts of the same
      statute are, for the same reasons, incompatible with the
      Basic Law or any other part of federal law, the
      Federal Constitutional Court may likewise declare them null and
      void."
 
                              Section 79
 
      "... 2. In all other respects, subject to the provisions of
      section 95 (2) or a specific statutory provision, final decisions
      based on a rule declared null and void pursuant to section 78
      shall remain unaffected. Such decisions shall not be enforceable
      ..."
 
PROCEEDINGS BEFORE THE COMMISSION
 
39. Mr Pammel applied to the Commission on 15 August 1990. Relying
on Article 6 para. 1 of the Convention (art. 6-1), he complained of the
length of the proceedings in the Federal Constitutional Court. 40. On 10 January 1995 the Commission declared the application
(no. 17820/91) admissible. In its report of 25 January 1996
(Article 31) (art. 31) it expressed the unanimous opinion that there
had been a violation of Article 6 para. 1 of the Convention (art. 6-1). The full text of the Commission's opinion is reproduced as an annex to
this judgment (1).
_______________
Note by the Registrar
 
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-IV), but a copy of the Commission's report is obtainable
from the registry.
_______________
 
FINAL SUBMISSIONS TO THE COURT
 
41. In their memorial the Government asked the Court to hold
 
      "that the right of the applicant under Article 6 para. 1 of the
      Convention (art. 6-1) to a decision within a reasonable time has
      not been violated".
 
42.

Article of the Convention at issue: Article 6
Outcome: violation