CASE OF PROBSTMEIER v. GERMANY

1. The case was referred to the Court by a German national,
Mrs Mechthilde Probstmeier ("the applicant"), on 18 September 1996, and
by the Government of the Federal Republic of Germany ("the Government")
on 23 October 1996, within the three-month period laid down by
Article 32 para. 1 and Article 47 of the Convention (art. 32-1,
It originated in an application (no. 20950/92) against Germany
lodged by Mrs Probstmeier with the European Commission of Human Rights
("the Commission") under Article 25 (art. 25) on 9 June 1992.
The applicant's application bringing the case before the Court
referred to Article 48 of the Convention (art. 48), as amended 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
2. On 18 September 1996 the applicant designated the lawyer who
would represent her (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 M.P., subsequently consented to the
3. On 29 October 1996 the President of the Court, Mr R. Ryssdal,
decided, in the interests of the proper administration of justice and
in accordance with Rule 21 para. 6, that the present case should be
allocated to the Chamber already set up to hear the case of
4. That Chamber included ex officio Mr R. Bernhardt, the
elected judge of German nationality (Article 43 of the Convention)
(art. 43), and Mr Ryssdal, the President of the Court (Rule 21
para. 4). On 30 March 1996, in the presence of the Registrar, the
President 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).
5. 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
27 November 1996 and the Government's memorial on 6 December 1996.
On 5 December 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 had informed
the Registrar that the Delegate would present his submissions at the
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
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 Pammel
v. Germany took place in public in the Human Rights Building,
Strasbourg, on 20 January 1997. The Court had held a preparatory
There appeared before the Court:
Mrs H. Voelskow-Thies, Ministerialdirigentin,
Federal Ministry of Justice, Agent,
Mr M. Weckerling, Regierungsdirektor,
Mr E. Radzwill, Regierungsrat zur Anstellung,
Federal Ministry of Justice, Advisers;
Mr P. Kloer, of the Munich Bar, Counsel;
Mr C. Lenz, of the Stuttgart Bar, Counsel.
The Court heard addresses by Mr Marxer, Mr Lenz, Mr Kloer and
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 Mr Pammel. 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 those of Mr Pammel on
I. The circumstances of the case
8. Mrs Mechthilde Probstmeier is a German national born in 1937.
9. She is the owner of a plot of land 44,271 sq. m in area, which
she inherited. This land was leased to the
Munich Allotment Garden Association (Kleingartenverein), which, in its
turn, sub-let the land to individual tenants.
The initial lease ran from 1 January 1955 to 31 December 1979
with the rent (Pachtzins) amounting to 0.10 German marks (DEM) per
A. The proceedings in the civil courts
10. In a letter of 22 November 1976 the applicant gave notice of
intention to terminate the lease with effect from 31 December 1979.
11. On 20 February 1978 she brought proceedings in the
Munich Regional Court (Landgericht) seeking an order for possession
(Räumung) against the Allotment Garden Association.
12. On 19 April 1978 the Regional Court gave judgment against
Mrs Probstmeier, who appealed to the Munich Court of Appeal
13. On 6 November 1978, at the parties' request, the Court of Appeal
decided to stay the proceedings (das Verfahren auszusetzen) pending a
judgment of the Federal Constitutional Court (Bundesverfassungsgericht)
on the constitutionality of certain provisions of the
Allotment Gardens Act (Kleingartenordnung) concerning the termination
14. The Federal Constitutional Court gave judgment on 12 June 1979
and the civil proceedings resumed in November 1979.
15. On 14 April 1981 the Court of Appeal once more decided to stay
the proceedings pending the promulgation of new legislation on
16. 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 on 14 June 1983.
17. On 12 December 1983 the Court of Appeal gave judgment against the
18. On 19 December 1983 Mrs Probstmeier appealed to the
Federal Court of Justice (Bundesgerichtshof), which declared her appeal
admissible on 13 December 1984.
B. The proceedings in the Federal Constitutional Court
19. On 24 May 1985 the Federal Court of Justice decided to stay the
proceedings and to refer the case to the Federal Constitutional Court
in accordance with the first sentence of Article 100 para. 1 of the
Basic Law (Grundgesetz) (see paragraph 29 below), submitting the
"1. Is it compatible with Article 14 of the Basic Law
[see paragraph 24 below] 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
The Federal Court of Justice considered that the question of the
constitutionality of section 16 (3) of the
Federal Allotment Gardens Act was decisive for the outcome of the
20. On 26 June 1987, in separate proceedings, the
Hamm Court of Appeal (Oberlandesgericht) referred to the
Federal Constitutional Court the question concerning the
constitutionality of sections 16 (3) and 16(4) of the
Federal Allotment Gardens Act (see paragraph 25 below) raised in the
Pammel case (see the Pammel v. Germany judgment of 1 July 1997, Reports
of Judgments and Decisions 1997-IV).
21. The Federal Constitutional Court decided to join the two cases.
22. 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
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.
23. On 25 April 1993 the Federal Court of Justice gave judgment
24. 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."
25. The relevant provisions of the Federal Allotment Gardens Act of
28 February 1983, which came into force on 1 April 1983, are worded as
"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
"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
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
26. 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.
27. 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
28. 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.
29. 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
30. The composition and functioning of the
Federal Constitutional Court are governed by the Federal Constitutional
Court Act (Gesetz über das Bundesverfassungsgericht).
31. According to section 2 of the Act, the
Federal Constitutional Court is constituted in two divisions, each
32. Sections 80 to 82 concern review of constitutionality in
connection with a specific case (Konkrete Normenkontrolle), and are
"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
legal provision in issue and what higher-ranking legal rule it
is incompatible with. The application must be accompanied by the
3. The application by the court shall be independent of any
complaint by a party to the proceedings that the legal provision
"The Federal Constitutional Court shall determine only the point
"1. The provisions of sections 77 to 79 shall apply
2. The constitutional organs named in section 77 may join the
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."
33. Sections 77 to 79, to which section 82 refers, provide:
"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."
"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
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
34. Mrs Probstmeier applied to the Commission on 9 June 1992.
Relying on Article 6 para. 1 of the Convention (art. 6-1) and
Article 14 taken in conjunction with Article 1 of Protocol No. 1
(art. 14+P1-1), she complained of the length of the proceedings in the
Federal Constitutional Court and of a discriminatory infringement of
35. On 28 June 1994 and 26 June 1995 the Commission declared the
application (no. 20950/92) admissible as regards the complaint relating
to the length of the proceedings in the Federal Constitutional Court
and inadmissible as regards the remainder.
In its report of 25 June 1996 (Article 31) (art. 31) it expressed
the opinion by twenty-four votes to five 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
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
36. 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
37. The applicant asked the Court
"to hold that there has been a violation of Article 6 para. 1 of
the Convention (art. 6-1) and that Germany must pay the applicant
DEM 60,168.43 as compensation for pecuniary damage and
DEM 8,882.68 for costs and expenses".
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
38. The applicant submitted that the length of the proceedings in the
Federal Constitutional Court had exceeded the reasonable time referred
to in Article 6 para. 1 of the Convention (art. 6-1), which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
39. The Government contested this argument, whereas the Commission
40. The Court must first determine whether Article 6 para. 1
A. Applicability of Article 6 para. 1 (art. 6-1)
41. The Government submitted that there were substantial differences
between an individual complaint of unconstitutionality
(Verfassungsbeschwerde), as in the Süßmann case (see the Süßmann
v. Germany judgment of 16 September 1996, Reports of Judgments and
Decisions 1996-IV), and an objective review of the constitutionality
of legislation carried out in connection with an application for a
preliminary ruling, as in the present case. Even though the
proceedings in the Federal Constitutional Court were linked to
proceedings relating to "civil rights and obligations", they had a
different purpose, since they concerned the constitutionality of
certain provisions of the Allotment Gardens Act. To link a decision
given in response to an application for a preliminary ruling with
proceedings in the ordinary courts was to disregard the special
function of the Federal Constitutional Court and the specific features
of the type of procedure in question. Moreover, in view of the
importance of such a decision, which had the force of law, the
Federal Constitutional Court could not be required to give judgment
42. The applicant maintained that, according to the criteria
established by the Court's case-law, the applicability of Article 6
para. 1 of the Convention (art. 6-1) to the proceedings in issue was
not open to doubt. There was evidently a very close link between
proceedings in the ordinary courts and a review of constitutionality
arising from those proceedings (Konkrete Normenkontrolle), where the
decision of the Federal Constitutional Court was always decisive for
43. The Commission, which referred to the Court's case-law, also
concluded that Article 6 para. 1 (art. 6-1) was applicable to the
44. As the Court stated in the Süßmann judgment, it is fully aware
of the special role and status of a constitutional court, which, in
those States that have made provision for a right of individual
petition, affords additional legal protection to citizens at
national level in respect of their fundamental rights guaranteed in the
Constitution (see the aforementioned Süßmann judgment, p. 1170,
45. The Court observes that it has already had to consider on a
number of occasions the question of the applicability of Article 6
para. 1 (art. 6-1) to proceedings before a constitutional court.
46. In accordance with its established case-law on the question
(see, most recently, the Ruiz-Mateos v. Spain judgment of 23 June 1993,
Series A no. 262, p. 19, para. 35, and the aforementioned
Süßmann judgment, p. 1171, para. 39), the relevant criterion for
determining whether proceedings before a constitutional court should
be taken into account in order to establish whether the overall length
of proceedings was reasonable is the question whether the result of
those proceedings may influence the outcome of the proceedings in the
47. A particular feature of the present case is that it concerns only
the length of the proceedings in the Federal Constitutional Court, as
in the Süßmann case, because before the Commission the applicant
complained of the length of those proceedings only (see paragraph 26
of the Commission's report). On the other hand, the Süßmann case
concerned an individual constitutional appeal, whereas in this case the
Federal Court of Justice asked the Federal Constitutional Court to give
a ruling on the constitutionality of legislative provisions. In that
respect, it therefore more closely resembles the Ruiz-Mateos case
(see the aforementioned Ruiz-Mateos judgment, p. 12, para. 15, and
48. The Court reiterates that proceedings come within the scope of
Article 6 para. 1 (art. 6-1), even if they are conducted before a
constitutional court, where their outcome is decisive for civil rights
and obligations (see the aforementioned Süßmann judgment, p. 1171,
49. In the present case the applicant had terminated the lease with
the Munich Allotment Garden Association and had sought a possession
order against it, with a view to recovering her land
(see paragraphs 10 and 11 above). The dispute before the civil courts
therefore concerned the applicant's right of property, which is
certainly a civil right within the meaning of Article 6 (art. 6)
(see, inter alia, the Zander v. Sweden judgment of 25 November 1993,
Series A no. 279-B, p. 40, para. 27). Moreover, that has not been
50. The Federal Court of Justice subsequently referred the case to
the Federal Constitutional Court for a ruling on the constitutionality
of the impugned provisions of the Federal Allotment Gardens Act
51. Under German law a court must stay proceedings and refer a case
to the Federal Constitutional Court if it considers a law whose
validity has a bearing on its decision to be unconstitutional
(Article 100 para. 1 of the Basic Law, see paragraph 29 above). In the
reasons for its application it must state in what respect the outcome
of the proceedings before it depends on the validity of the
legislative provision in issue (section 80 (2) of the
Federal Constitutional Court Act, see paragraph 32 above).
52. In the present case the proceedings in the
Federal Constitutional Court were therefore closely linked to those in
the civil courts; not only was the former's decision directly decisive
for the applicant's civil right, but in addition, as the proceedings
arose from an application for a preliminary ruling, the
Federal Court of Justice was obliged to wait for the
Federal Constitutional Court's decision before it could give judgment.
53. It follows that Article 6 para. 1 (art. 6-1) is applicable to the
B. Compliance with Article 6 para. 1 (art. 6-1)
1. Period to be taken into consideration
54. The period to be taken into consideration is only the time taken
for the proceedings in the Federal Constitutional Court, which began
on 24 May 1985 when the Federal Court of Justice made its application
to the Federal Constitutional Court and ended on 23 September 1992 when
the latter gave judgment. It therefore lasted seven years and
55. The reasonableness of the length of proceedings must be assessed
in the light of the circumstances of each case and having regard in
particular to the complexity of the case and the conduct of the parties
and the relevant authorities (see the aforementioned Süßmann judgment,
56. In the applicant's submission, the case was not particularly
complex; it would have sufficed for the Federal Constitutional Court
to transpose to the present case the reservations it had previously
expressed in a 1979 judgment about the constitutionality of the
provisions of the Federal Allotment Gardens Act establishing a
rent freeze (see paragraphs 13 and 14 above).
57. The Government maintained that the case was complex because after
the Federal Constitutional Court's 1979 judgment Parliament had
promulgated in 1983 an entirely new Allotment Gardens Act, thus
creating a new basis for legal issues relating thereto
58. The Court, like the Commission, considers that the case was
undoubtedly complex. The fact that the Federal Constitutional Court
decided of its own motion to extend the review of constitutionality to
another provision of the Allotment Gardens Act, ruling on that issue
in its judgment of 23 September 1992, in which it set out its reasons
at some length, attests to the legal difficulty of the issues raised.
The scope of its judgment thus went well beyond the present case.
Moreover, the Federal Constitutional Court had to obtain the
observations of various authorities before it gave its decision
59. Like the Commission, the Court notes that the applicant was not
responsible for any delay to the proceedings. Moreover, no assertion
to that effect was made by the Government.
(c) Conduct of the Federal Constitutional Court
60. Mrs Probstmeier submitted that proceedings which had lasted seven
years far exceeded a "reasonable time" within the meaning of
Article 6 para. 1 of the Convention (art. 6-1) and that it was for the
State to ensure that the Federal Constitutional Court was not burdened
with an excessive caseload. Furthermore, the issues raised affected
about one million tenants and some one hundred thousand private
61. The Government emphasised the Federal Constitutional Court's
excessive caseload since the end of the 1970s, which had obliged it to
deal with more urgent cases, of considerable political and social
importance, some of which concerned the after-effects of
German reunification. Numerous efforts, they added, had already been
made to amend the Federal Constitutional Court Act and lighten the
Federal Constitutional Court's burden. However, the possibilities for
structural changes were objectively limited if the
Federal Constitutional Court were to preserve its role as guardian of
the Constitution and fundamental rights.
62. In the Commission's view the length of the proceedings in the
present case had been excessive, particularly in view of the special
importance of the case for other landlords in the same situation.
63. The Court observes that it has repeatedly held that Article 6
para. 1 (art. 6-1) imposes on the Contracting States the duty to
organise their judicial systems in such a way that their courts can
meet each of its requirements, including the obligation to hear cases
within a reasonable time (see the aforementioned Süßmann judgment,
p. 1174, para. 55). Although this obligation cannot be construed in
the same way for a constitutional court as for an ordinary court, it
is for the European Court in the last instance to verify that it has
been complied with, having regard to the particular circumstances of
each case and the criteria laid down in its case-law.
64. Moreover, a temporary backlog of court business does not entail
a Contracting State's international liability if it takes appropriate
remedial action with the requisite promptness (see the
Unión Alimentaria Sanders S.A. v. Spain judgment of 7 July 1989,
Series A no. 157, p. 15, para. 40). However, according to the Court's
established case-law, a chronic overload, like the one the
Federal Constitutional Court has laboured under since the end of the
1970s, cannot justify an excessive length of proceedings.
65. In the present case the Federal Court of Justice applied to the
Federal Constitutional Court for a ruling in May 1985 and the
proceedings remained pending there for more than seven years
(see paragraphs 19 and 22 above).
66. Unlike the position in the Süßmann case, German reunification can
have played only a secondary role in the present case because when the
reunification treaty was signed, on 3 October 1990, the proceedings had
been pending in the Federal Constitutional Court for more than
67. Accordingly, despite the complexity of the case, the length of
the constitutional proceedings cannot satisfy the reasonable time
requirement laid down in Article 6 para. 1 of the Convention
68. In the light of all the circumstances of the case, the Court
concludes that the reasonable time required by Article 6 para. 1
(art. 6-1) was exceeded, and that the provision (art. 6-1) in question
was therefore breached in that respect.
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
69. Under Article 50 of the Convention (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
70. Mrs Probstmeier sought compensation for pecuniary damage in the
sum of 60,168.43 German marks (DEM), corresponding to a loss of
interest for the period from 1988 to 1994. She asserted that the
length of the proceedings in the Federal Constitutional Court had
prevented her from applying to the civil courts at the appropriate time
for a rent increase, as she was entitled to do under the transitional
provisions of the new Allotment Gardens Act 1994 (see paragraph 28
71. The Government maintained that there was no causal connection
between any violation which might be found on account of the length of
the proceedings and the alleged pecuniary loss. The proceedings in the
Federal Court of Justice concerned only Mrs Probstmeier's application
for a possession order against the tenants, not a request for the rent
to be increased (see paragraphs 11-18 above). That was why only the
question of the constitutionality of section 16 of the
Federal Allotment Gardens Act, relating to the duration of leases, had
been referred to the Federal Constitutional Court (see paragraph 19
above). Furthermore, there was no causal connection either between the
Federal Court of Justice's initial application for a preliminary ruling
and the fact that the Federal Constitutional Court extended the review
of constitutionality of its own motion or between the latter's judgment
and the promulgation of a new law enabling private lessors to obtain
higher rents retrospectively (see paragraph 28 above).
72. The Delegate of the Commission did not exclude the possibility
that the excessive length of the proceedings could have caused the
applicant pecuniary loss and asked the Court to award her financial
compensation on an equitable basis.
73. The Court notes that in choosing to extend the review of
constitutionality to section 5 of the Federal Allotment Gardens Act the
Federal Constitutional Court must have considered that the provisions
concerning the duration of leases and those concerning rent levels were
Even though Parliament enjoyed a measure of discretion over
details (Gestaltungsbefugnis) as regards promulgation of the new law
following the Federal Constitutional Court's judgment, the Court
considers it reasonable to conclude that, as a result of the delay, in
breach of Article 6 para. 1 (art. 6-1), found in the present judgment,
the applicant suffered a loss of opportunities which warrants an award
of just satisfaction in respect of pecuniary damage (see, in
particular, mutatis mutandis, the Martins Moreira v. Portugal judgment
of 26 October 1988, Series A no. 143, pp. 22-23, para. 65, and the
Silva Pontes v. Portugal judgment of 23 March 1994, Series A no. 286-A,
The damage sustained cannot be precisely calculated. Assessing
it as a whole and on an equitable basis, as required by Article 50
(art. 50), the Court awards Mrs Probstmeier compensation in the sum of
74. The applicant further claimed reimbursement of her costs before
the Convention institutions, which she put at DEM 8,882.68, including
value-added tax (VAT). Her lawyer's fees are calculated on the basis
of the value of the subject-matter, in accordance with the regulations
on lawyers' fees (Bundesrechtsanwaltsgebührenordnung - BRAGO)
75. The Government argued that the amount claimed for lawyers' fees
was incorrectly calculated because it was based on pecuniary damage
which had not been established.
76. The Delegate of the Commission submitted that the amounts claimed
77. The Court reiterates that it does not consider itself bound by
domestic scales and practices, although it may derive some assistance
On the basis of the information in its possession and its
case-law on this question, it considers the amount claimed by the
applicant reasonable and awards it in full.
78. According to the information available to the Court, the
statutory rate of interest applicable in Germany at the date of
adoption of the present judgment is 4% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 para. 1 of the Convention (art. 6-1) is