In the case of Rumpf v. Germany,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 6 July 2010,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 46344/06) 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 a German
national, Mr Rüdiger Rumpf (“the applicant”), on 10 November 2006.
The applicant, who had been
granted legal aid, was represented by Mr S. Schill, a lawyer practising in
Wetzlar. The German Government (“the Government”) were represented
by their Agent, Mrs A. Wittling -Vogel,
Ministerialdirigentin, Federal Ministry of Justice.
On 15 July 2009 the
President of the Fifth Section decided to give notice of the application to the
Government. It was also decided to rule on the admissibility and merits of the application
at the same time (Article 29 § 3).
On 24 November 2009 the Chamber decided to give
priority treatment to the above application in accordance with Rule 41 of the
Rules of Court and to inform the parties that it was considering the
suitability of applying a pilot judgment procedure in the case (see Broniowski
v. Poland [GC], no. 31443/96, §§ 189-194 and the operative part,
ECHR 2004-V, and Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 231-239
and the operative part, ECHR 2006-VIII). The Chamber also decided to
invite the parties, under Rule 54 § 2 (c), to submit further
observations on the case.
The parties submitted further written
observations. The applicant requested the Chamber to hold a hearing. The
Government objected to a hearing. The Chamber decided, pursuant to Rule 54 § 3
and Rule 72 §§ 1 and 2, that no hearing was required.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1951 and lives in Ingelheim.
A. Background to the case
Since 1979 the applicant has operated a personal security service (Personenschutzunternehmen).
On 1 June 1992 he lodged an application for gun
licences (waffenrechtliche Erlaubnis) with the county of Querfurt (Saxony-Anhalt), which was granted. Subsequent requests for a renewal of these
licences in May and October 1993 were only provisionally granted and were
finally dismissed on 23 November 1993.
On 30 November 1993 the applicant lodged an
administrative appeal (Widerspruch) against the decision of 23 November
1993, which was dismissed on 18 March 1994.
The applicant also applied to the Administrative Court for interim measures. This application was dismissed in January 1994, which
decision was confirmed on appeal by the Administrative Court of Appeal in
August 1994.
B. First-instance proceedings
On 22 April 1994 the applicant brought an action
with Halle Administrative Court, initially without detailed reasoning.
On 30 June 1994 the statement of defence and the
administrative files were submitted to the court. On 7 October 1994 the
applicant appointed additional legal counsel, who resigned again in November
1994.
In June 1995 Halle Administrative Court ordered
the applicant to reason his action within six weeks. After the applicant's
lawyer had twice requested an extension of the time-limit set by the court he
submitted the reasoning on 19 September 1995. In October 1995 the applicant
appointed additional legal counsel.
On 5 March 1996 Halle Administrative Court
scheduled a hearing for 11 April 1996, which was subsequently rescheduled for
30 May 1996 upon the defendant's request.
After the hearing on 30 May 1996 the judgment
was delivered and on 4 and 5 July 1996 served on the applicant's counsel.
C. Appeal proceedings
On 22 July 1996 the applicant appealed the
judgment. On 5 August 1996 the files were transferred to the Administrative
Court of Appeal. On 22 October 1996 the reasoning of the appeal was
submitted. On 23 December 1996 and 21 February 1997 answers to the
appeal were lodged.
On 2 July 1997 the Administrative Court of
Appeal informed the applicant's counsel, at his request, that it was not
foreseeable when a decision would be rendered.
On 10 September 1998 a hearing was scheduled for
18 November 1998. On 10 November 1998, after inspection of the files, the applicant's
counsel informed the Administrative Court of Appeal that the files were
incomplete. On the same day the court started an enquiry in this respect and
informed counsel on 12 November 1998 that its investigations had been to no
avail. On 16 November 1998 the applicant's counsel asked for the hearing to be
postponed in order for the missing files to be reassembled. On 18 November
1998 the hearing took place; however, the case was adjourned.
On 8 December 1999 the Administrative Court of
Appeal requested the missing files from the administrative authorities without
success. In January and March 2000 the applicant's counsel enquired about
the state of the proceedings. On 3 August 2000 the Administrative Court of
Appeal requested the files from Halle Administrative Court, without success. On
29 May 2001 the court informed counsel that its efforts to locate the
missing files had failed and that a hearing was planned for July 2001.
On 12 June 2001 a hearing was scheduled for 12
July 2001. On 9 July 2001 the applicant's counsel asked for the hearing to
be postponed because he had not yet been able to reassemble the missing
documents. The hearing was subsequently cancelled.
On 30 October 2002 new counsel for the applicant
requested a hearing and repeated this request on 4 December 2002. On 13
February 2003 counsel again asked for an oral hearing to be scheduled and
promised to try to reassemble the missing documents. On 18 March 2003, after counsel
had inspected the files in early March, he informed the court that he did not
deem the missing documents relevant and requested a hearing.
On 29 April 2003 the applicant's former counsel
applied for legal aid. On 9 May 2003 the applicant's current counsel filed
a motion for bias against the presiding judge because no hearing had been
scheduled. On 9 July 2003 he enquired about the state of the proceedings.
On 30 July 2003 the court asked for a
clarification of the applicant's representation and ordered the applicant's counsel
to submit a power of attorney, which he submitted on 5 August 2003. On 19 September
2003 the applicant's counsel again enquired about the state of the proceedings.
On 21 October 2003 the court asked whether a hearing could be scheduled
for 11 December 2003. The parties agreed. On 3 December 2003 the court informed
the parties that because of the motion for bias the hearing could not be held
on the date agreed upon. On 8 December 2003 the motion for bias was
dismissed.
On 5 February 2004 and 17 March 2004 applicant's
counsel renewed his request for a hearing. On 31 March 2004 the request for
legal aid was dismissed. On 7 April 2004 a hearing was scheduled for 13 May
2004. After the hearing the Administrative Court of Appeal dismissed the appeal
and refused leave to appeal on points of law. On 30 June 2004 the reasoned
judgment was served on the applicant's counsel.
D. Proceedings regarding leave to appeal on points of
law
On 16 September 2004 the applicant's counsel
objected to the refusal to grant leave to appeal on points of law. On 5 January
2005 the Federal Administrative Court dismissed the objection; this was served
on the applicant's lawyer on 21 January 2005.
E. Constitutional complaint
On 7 March 2005 the applicant brought a
constitutional complaint against, inter alia, the decisions of Halle
Administrative Court of 30 May 1996, the Saxony-Anhalt Administrative
Court of Appeal of 13 May 2004 and the Federal Administrative Court of 5
January 2005, as well as the decisions of the administrative courts with regard
to the interim proceedings. He alleged, inter alia, a violation of his
right under Article 6 of the Convention because of the length of the
proceedings. At the same time he applied for restitutio in integrum
because he had failed to comply with the one-month time-limit for
constitutional complaints.
On 15 March 2005 the Registry of the Federal Constitutional Court informed the applicant about doubts as to the admissibility of
his complaint and asked him to indicate within one month whether he wanted to pursue
his complaint. On 14 April 2005 the applicant, who had in the meantime retained
new counsel, requested an extension of the time-limit until 16 May 2005. In May
2005 the Registry of the Federal Constitutional Court informed the applicant's counsel
that the case would not be registered as a case requiring a judicial decision but
would remain in the general register until further submissions had been made. On
12 October 2005 counsel of the applicant submitted observations. On 22 November
2005 the case was registered as a case requiring a decision.
In a partial decision of 27 April 2006 the Federal Constitutional Court (file no. 1 BvR 2398/05) dismissed the constitutional complaint
as inadmissible in part. The remainder, regarding the length of the proceedings,
was forwarded to the Ministry of Justice of Saxony-Anhalt for comments on 11 May
2006.
On 30 August 2006 the Ministry of Justice of
Saxony-Anhalt submitted its comments. On 25 April 2007 the Federal
Constitutional Court refused to admit the remainder of the applicant's
constitutional complaint for examination without examining the application for restitutio
in integrum. On 7 May 2007 the applicant's lawyer received the Federal Constitutional Court's decision.
II. Relevant domestic law
A. De lege lata
Section 82 of the Administrative Court Rules (Verwaltungsgerichtsordnung)
specifies the requirements that every complaint lodged with the administrative
court must comply with, one of which is that the facts and evidence on which
the complaint is based should be specified. It further provides that the court
shall request the applicant to furnish the necessary information within a
determined period of time in the event that the complaint does not meet these
requirements.
Section 86 (1) of the Administrative Court Rules
provides that the court shall investigate the facts of its own motion.
Furthermore, it is not bound by the submissions or requests of the parties.
Further relevant domestic law, applicable mutatis
mutandis to proceedings before the administrative courts, is described in
the Court's decision of Sürmeli v. Germany (see Sürmeli v. Germany
[GC], no. 75529/01, §§ 62-74, ECHR 2006-VII); regarding special
complaints alleging inaction the Federal Administrative Court explicitly decided
on 30 January 2003 (file no. 3 B 8/03) that the Administrative Court Rules
do not provide for such a remedy.
B. De lege ferenda
The draft bill referred to by the respondent
State in the case of Sürmeli (cited above, § 90), tabled in 2005,
was abandoned in 2007. On 15 March 2010 the Government introduced a
new draft, namely the Act on legal protection in the event of excessive
length of judicial proceedings and preliminary proceedings under criminal statutes
(Gesetz über Rechtsschutz bei überlangen Gerichtsverfahren und
strafrechtlichen Ermittlungsverfahren). Pursuant to this proposed
legislation a complaint about a delay in the proceedings must first be lodged
in the original proceedings. Where the domestic court subsequently does not
provide redress, an action for damages can be brought.
The draft bill was forwarded to all affected
institutions in April 2010; comments were expected by early June 2010.
Afterwards necessary amendments will have to be agreed upon before the Cabinet
deals with the draft bill for the first time. The draft bill will then be forwarded
for comments to the Bundesrat, the upper house of the German parliament,
before being presented to the Bundestag, the lower house.
III. Relevant COUNCIL of europe DOCUMENTS
The relevant Council of Europe documents are
described in the Court's judgment of Yuriy Nikolayevich
Ivanov v. Ukraine (see Yuriy Nikolayevich
Ivanov v. Ukraine, no. 40450/04, § 35-37, ECHR 2009-...
(extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant 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, in so far as relevant, 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 period to be taken into consideration began
on 30 November 1993 and ended with the receipt of the second decision of the Federal Constitutional Court on 7 May 2007. It thus lasted thirteen years, five months and
one week at four levels of jurisdiction.
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 parties' submissions
The applicant maintained that the overall
duration of the proceedings was in breach of the “reasonable time” requirement of
Article 6 § 1 of the Convention. Referring to Section 82 of the
Administrative Court Rules he submitted that the administrative courts failed to
duly expedite the proceedings by setting effective time-limits for the parties'
submissions. With regard to the missing files, he argued that since they had
been lost while in the possession of the Administrative Court of Appeal every
delay in this respect had to be attributed to the respondent State. He further
maintained that the engagement of different lawyers on his part should not have
led to a delay since there had never been any doubt as to who represented him.
The applicant admitted responsibility for a delay of approximately six to seven
months.
The Government acknowledged that the duration of
the proceedings had exceeded the “reasonable time” requirement, as set out in
Article 6 § 1 of the Convention. However, they pointed out that the proceedings
were complicated by the simultaneous conduct of interim proceedings and by the
changes of counsel. They further maintained that the applicant had contributed
considerably to the overall length of the proceedings, inter alia, by
submitting an unreasoned complaint and requesting extensions of time-limits.
As to the proceedings before the Administrative Court of Appeal the Government
conceded that the conduct of the court had contributed substantially to the
length of the proceedings and that, in particular, the court could have advanced
the proceedings by issuing procedural directions (prozessleitende
Verfügungen). However, they maintained that the applicant's representatives'
contradictory behaviour regarding the missing files had also contributed to the
delay. The Government acknowledged that due to the applicant's professional
situation there was a lot at stake for him, but also emphasised that it was in
the first place the refusal to grant the gun licence which had damaged him
economically, not the length of the proceedings.
2. The Court's assessment
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 applicant and the relevant authorities and what was at
stake for the applicant in the dispute (see, among many other authorities, Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
The Court observes that the proceedings did not
raise any questions of law or fact of particular complexity. The fact that the
applicant also pursued his interest in interim proceedings cannot justify any
delay. The Court not only considers this to be a common procedural
situation but, in particular, observes that the interim proceedings came to an
end already in August 1994, shortly after the main proceedings began and long
before the appeal proceedings started. They can thus not have had a delaying
effect on the main proceedings.
As to the applicant's conduct, the Court, taking
note of Sections 82 and 86 (1) of the Administrative Court Rules, finds that it
was first and foremost the Administrative Court's duty to set the applicant a
time-limit for submission of a more detailed reasoning of his action. Thus,
only a delay of approximately two months can be attributed to the applicant, resulting
from the two requests for the extension of the time-limit set by the court more
than one year after the action was lodged. As to the representation of the
applicant the Court notes that only two lawyers were involved before the
Administrative Court of Appeal, where the most substantial delay occurred.
Furthermore, that court only asked for clarification of the applicant's
representation nine months after the second lawyer had intervened. The Court
thus cannot find that the additional appointment of legal counsel made the
applicant responsible for any delay of the proceedings. Regarding the applicant's
conduct before the Federal Constitutional Court the Court observes that he was
informed by the Registry of that court that they had doubts as to the
admissibility of his constitutional complaint and that the case would remain in
the general register until further submissions; a time-limit of 15 April 2005
was set. However, further observations were only submitted six months later.
This delay must be attributed to the applicant.
Turning to the conduct of the domestic courts,
the Court observes in particular that before the Administrative Court of Appeal
alone the proceedings were pending for almost eight years. The first
substantial delay took place right at the beginning of the appeal proceedings
when the court did not advance the proceedings for more than one and a half years.
The next delay, from November 1998 to May 2001, was caused by the (unsuccessful)
attempt to recover the missing files, which the Court considers to fall within
the area of responsibility of the respondent State. The applicant's
representative's offer to reassemble the files did not absolve the
Administrative Court of Appeal of its duty to continue its efforts to recover
the files and to advance the proceedings. But even after the Administrative
Court of Appeal had informed the parties that it had been unsuccessful in
locating the files it did not conduct the proceedings with due diligence. The
hearing scheduled for July 2001 was cancelled; a new hearing was not set until
April 2004. The fact that during this time the applicant lodged a motion for
bias and applied for legal aid cannot justify the fact that no new hearing was set
in almost three years. Rather, the application for legal aid, which was only decided
after some eleven months, as well as the motion for bias, which took seven
months to decide, should have been dealt with more rapidly.
As to what was at stake for the applicant, the
Court notes that the applicant's business depended on the outcome of the case,
namely the renewal of a gun licence. While the Court accepts that the final
refusal of the licence led to an economic loss for the applicant, it was in
particular also the length of the proceedings and the resulting uncertainty as
to whether he would be able to resume his business that damaged the applicant.
If the proceedings had been terminated in a more timely fashion he could have
started to reorganise or relocate his business earlier.
Having examined all the material submitted and having
regard to its case-law on the subject the Court 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 § 1of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant further complained of the lack of
effective domestic remedies in respect of his complaint about the excessive
length of judicial proceedings. He relied on Article 13 of the Convention which
provides as follows:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
The Government conceded that the applicant had
no effective domestic remedy available to him within the meaning of Article 13
of the Convention with regard to the delay in the proceedings before the
Administrative Court of Appeal.
The Court notes that this complaint is linked to
the one examined above and must therefore likewise be declared admissible.
The Court reiterates that Article 13 of the
Convention gives direct expression to the States' obligation, enshrined in
Article 1 of the Convention, to protect human rights first and foremost within
their own legal system. It therefore requires that the States provide a
domestic remedy to deal with the substance of an “arguable complaint” under the
Convention and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). In
the present case, having regard to its conclusion with regard to the excessive
length of the proceedings, the Court considers that the applicant had an
arguable claim of a violation of Article 6 § 1.
The Court reiterates
that according to its recent case-law there is no effective remedy under German
law capable of affording redress for the
unreasonable length of civil proceedings (see Sürmeli, cited above, §§ 103 -108,
ECHR 2006-VII, and Herbst v. Germany, no. 20027/02, §§ 63-68,
11 January 2007).
Accordingly, the Court considers that in the
present case there has been a violation of Article 13 of the Convention on
account of the lack of a remedy under domestic law whereby the applicant could
have obtained a ruling upholding his right to have his case heard within a
reasonable time, as set forth in Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
The Court notes that the instant case concerns a
recurring problem underlying the most frequent violations of the Convention
found by the Court in respect of Germany; more than half of its judgments
against Germany finding a violation concerned the issue of excessive length of
judicial proceedings. In Sürmeli (cited above, §§ 115-117) the
Court also concluded that the German legal system offered no effective domestic
remedy, as required by Article 13 of the Convention, to prevent excessively
long judicial proceedings or to afford redress for the damage created by such
proceedings.
While the Court takes note of the new draft
legislation introduced in March 2010 it is also acutely aware that it is for
the time being uncertain whether this legislation will ever enter into force or
whether it will in the end be abandoned, as was the case with the bill tabled in
2005 (see Relevant domestic law above, § 33). Unless and until such
legislation actually becomes law and proves to be effective the Court finds
that the issues of excessive length of proceedings and lack of effective
domestic remedies in the German legal system remain unresolved, despite the
fact that there has for quite some time been clear case-law urging the
Government to take appropriate measures to resolve those issues.
In this context the Court reiterates that it has
already drawn the respondent State's attention to Article 46 of the Convention in
its Sürmeli judgment (cited above, § 137):
137. The Court reiterates that, in accordance with
Article 46 of the Convention, the finding of a violation imposes on the
respondent State a legal obligation not just to pay those concerned the sums
awarded by way of just satisfaction under Article 41, but also to select,
subject to supervision by the Committee of Ministers, the general and/or, if
appropriate, individual measures to be adopted in their domestic legal order to
put an end to the violation found by the Court and to redress so far as
possible the effects (see Broniowski v. Poland [GC], no. 31443/96, § 192,
ECHR 2004-V).
In these circumstances the Court considers it
necessary to examine this case under Article 46 of the Convention, which, in
so far as relevant, reads as follows:
“1. The High Contracting Parties undertake to abide
by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its execution.
...”
A. The parties' submissions
The applicant submitted that the German
authorities' continuing failure to introduce an effective domestic remedy after
the Court's judgment in Sürmeli (cited above) constituted a systemic
problem.
The Government submitted that over the past few
years the average length of proceedings before the administrative courts
continuously decreased across Germany, namely from an average of 14.1 months
before the Administrative Courts in 2005 to 12.3 months in 2008. They
maintained that these figures did not support the conclusion that there were
any systemic problems. While the length of proceedings before the
Administrative Courts of Appeal has risen since 2005 from an average of 8.7
months in 2005 to 10.2 months in 2008, the Government argued that theses
numbers did not disclose a systemic problem either. They further submitted that
with the new draft bill measures have been taken to remedy the situation and
fulfil the obligations under the Convention. While the Government, referring to
Burdov v. Russia (no. 2) (see Burdov
v. Russia (no. 2), no. 33509/04, § 140, ECHR 2009-...),
further noted that it was not for the Court to assess the overall adequacy of
the ongoing reform, they left it to the discretion of the Court whether to
apply the pilot judgment procedure.
B. The Court's assessment
1. Application of the pilot judgment procedure
The Court reiterates that Article 46 of the
Convention, as interpreted in the light of Article 1, imposes on the respondent
State a legal obligation to implement, under the supervision of the Committee
of Ministers, appropriate general and/or individual measures to secure the
right of the applicant which the Court found to be violated. Such measures must
also be taken in respect of other persons in the applicant's position, notably
by solving the problems that have led to the Court's findings (see Scozzari
and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 VIII;
Lukenda v. Slovenia, no. 23032/02, §§ 94-95, ECHR 2005-X
and S. and Marper v. the United Kingdom [GC], nos. 30562/04 and
30566/04, § 134, ECHR 2008-...).
In its resolution on judgments revealing an
underlying systemic problem, adopted on 12 May 2004, the Committee of Ministers
invited the Court “to identify in its judgments finding a violation of the
Convention what it considers to be an underlying systemic problem and the
source of that problem, in particular when it is likely to give rise to
numerous applications, so as to assist States in finding the appropriate solution
and the Committee of Ministers in supervising the execution of judgments”.
In order to facilitate the effective
implementation of its judgments along these lines, the Court
may adopt a pilot judgment procedure allowing it to clearly identify in a
judgment the existence of structural and/or systemic problems underlying the
violations and to indicate specific measures or actions to be taken by the
respondent state to remedy them (see Broniowski, cited above,,
§§ 189-194 and the operative part, ECHR 2004-V, and Hutten-Czapska,
cited above, §§ 231-239 and the operative part, ECHR 2006-VIII).
In line with its approach in the case of Yuriy
Nikolayevich Ivanov (cited above, §§ 81-82), which concerned similar
issues albeit with regard to the non-enforcement of domestic decisions, the Court considers it appropriate to apply the pilot judgment
procedure in the present case, given notably the recurrent and persistent
nature of the underlying problems, the number of people affected by them in
Germany and the need to grant them speedy and appropriate redress at domestic
level.
. Contrary
to the Government's submissions, the application of the pilot judgment
procedure in the present case does not lead to an assessment by the Court of
the adequacy of the ongoing legislative reform; rather, this procedure (only)
allows the Court to conclude that the respondent State must introduce a
remedy which secures genuinely effective redress for the violations of the
Convention on account of the State authorities' prolonged failure to comply
with judicial decisions delivered against the State or its entities (Burdov (no. 2), cited above, § 141).
2. Existence of a practice incompatible with the
Convention
. The
Court notes that from 1959 to 2009 it has delivered judgments in more than forty
cases against Germany finding repetitive violations of the Convention on
account of the excessive length of civil proceedings. In 2009 alone thirteen such
violations of the reasonable-time requirement of Article 6 § 1 of the
Convention were found.
Following the judgment in Sürmeli (cited
above, §§ 115-116) the Court has found a violation of the reasonable-time
requirement of Article 6 § 1 of the Convention regarding civil proceedings
in numerous further judgments: Nold v. Germany, no. 27250/02, 29 June
2006; Stork v. Germany, no. 38033/02, 13 July 2006; Grässer v.
Germany, no. 66491/01, 5 October 2006; Klasen v. Germany, no.
75204/01, 5 October 2006; Herbst v. Germany, no. 20027/02, 11 January
2007; Kirsten v. Germany, no. 19124/02, 15 February 2007; Laudon
v. Germany, no. 14635/03, 26 April 2007; Skugor v. Germany, no.
76680/01, 10 May 2007; Nanning v. Germany, no. 39741/02, 12 July 2007; Glüsen
v. Germany, no. 1679/03, 10 January 2008; Bähnk v. Germany, no. 10732/05,
9 October 2008; Leela Förderkreis e.V. and Others v. Germany, no.
58911/00, 6 November 2008; Adam v. Germany, no. 44036/02, 4 December 2008; Bozlar v. Germany, no. 7634/05, 5
March 2009; Deiwick v. Germany, no. 7369/04, 26 March 2009; Hub v. Germany, no. 1182/05, 9 April 2009; Ballhausen
v. Germany, no. 1479/08, 23 April 2009; Evelyne
Deiwick v. Germany, no. 17878/04, 11 June 2009; Mianowicz v. Germany (no. 2), no. 71972/01, 11 June 2009; Bayer v. Germany, no. 8453/04, 16 July 2009; D.E. v. Germany, no. 1126/05, 16 July 2009; Kindereit v. Germany, no. 37820/06, 8 October 2009; Sopp v. Germany,
no. 47757/06, 8 October 2009; Abduvalieva v. Germany,
no. 54215/08, 26 November 2009; Von
Koester v. Germany (no. 1), no. 40009/04, 7 January 2010; Wildgruber
v. Germany, nos. 42402/05 and 42423/05, 21 January 2010; Kurt Müller
v. Germany, no. 36395/07, 25 February 2010; and Niedzwiecki v. Germany (no. 2), no. 12852/08, 1 April 2010.
66. Furthermore, the Court, composed as
a Committee of three judges and (initially provisionally) applying the
provision of Protocol No. 14 governing the power of three-judge committees to
decide on cases in which there is well-established case-law, has rendered
judgments finding a violation of the “reasonable time requirement” of Article 6
§ 1 of the Convention in civil proceedings in the following cases: Kressin
v. Germany, no. 21061/06, 22 December 2009; Jesse v. Germany, no.
10053/08, 22 December 2009; Petermann v. Germany, no. 901/05, 25
March 2010; Reinhard v. Germany, no. 485/09, 25 March 2010; Ritter-Coulais
v. Germany, 32338/07, 30 March 2010; Sinkovec v. Germany, no.
46682/07, 30 March 2010; Volkmer v. Germany, no. 54188/07, 30 March 2010;
Kuchejda v. Germany 17384/06, 24 June 2010; Schädlich v. Germany,
21423/07, 24 June 2010; Afflerbach v. Germany,
39444/08, 24 June 2010; and Perschke v.
Germany, 25756/09, 24 June 2010.
. Also,
since the Court's judgment in Sürmeli (cited above) the Government
concluded friendly settlements in twenty-eight cases and submitted unilateral
declarations in eight cases concerning the length of civil proceedings. These
applications were subsequently struck out of the list of cases.
. While
the Court welcomes the recent legislative initiative, it also notes that the respondent
State has failed so far actually to put into effect any measures aimed at
improving the situation, despite the Court's substantial and consistent
case-law on the matter.
. The
systemic character of the problems identified in the present case is further
evidenced by the fact that some fifty-five applications against Germany, which concern, fully or in part, the above problems, are currently pending
before the Court and the number of such applications is constantly increasing.
. In view
of the foregoing, the Court concludes that the violations found in the present
judgment were neither prompted by an isolated incident nor were they
attributable to a particular turn of events in this case, but were the
consequence of shortcomings of the respondent State. Accordingly,
the situation in the present case must be qualified as resulting from a
practice incompatible with the Convention (see Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999-V).
3. Adoption of measures to remedy the systemic
problems
The Court reiterates that it is in principle not
its task to determine what remedial measures may be appropriate to satisfy the
respondent State's obligations under Article 46 of the Convention. Subject to
monitoring by the Committee of Ministers, the respondent State remains free to
choose the means by which it will discharge its legal obligation under Article
46 of the Convention, provided that such means are compatible with the
conclusions set out in the Court's judgment (see Scozzari and Giunta,
cited above, § 249).
The Court notes with satisfaction that the
adoption of measures in response to the problem at issue has now been addressed
by the respondent State by tabling a draft bill regarding legal protection in
the event of excessively long court proceedings. However, it remains currently
unclear whether and when this bill will enter into force. Also, as the
respondent State explicitly acknowledged, its obligations to introduce into
German law a legal remedy against excessively long proceedings have been clear
since the Court's Sürmeli judgment in 2006; it thus demonstrated an
almost complete reluctance to resolve the problems at hand in a timely fashion.
The Court stresses that the respondent State
must introduce without delay, and at the latest within one year from the date
on which this judgment becomes final, a remedy or a combination of remedies in
the national legal system in order to bring it into line with the Court's
conclusions in the present judgment and to comply with the requirements of
Article 46 of the Convention. It must further ensure that the remedy or
remedies comply, both in theory and in practice, with the key criteria set by
the Court (see Sürmeli, cited above, §§ 97-101). In so doing, the
German authorities should also have due regard to the Committee of Ministers' recommendations
to the member States on the improvement of domestic remedies of 12 May 2004.
4. Procedure to be followed in similar cases
The Court reiterates that one of the aims of the
pilot judgment procedure is to allow the speediest possible redress to be
granted at domestic level to the large numbers of persons suffering from the
structural problem identified in the pilot judgment (see Burdov (no. 2), cited above, § 127). While the respondent State's action should primarily aim at the
resolution of such a dysfunction and at the introduction of effective domestic
remedies in respect of the violations in question, it may also include ad
hoc solutions such as friendly settlements with the applicants or
unilateral remedial offers in line with the Convention requirements. The Court
is thus in a position to decide in the pilot judgment on the procedure to be
followed in cases stemming from the same systemic problems (see, mutatis
mutandis, Broniowski, cited above, § 198, and Xenides-Arestis
v. Turkey, no. 46347/99, § 50, 22 December 2005).
. In the
present circumstances the Court does not consider it necessary to adjourn the
examination of similar cases pending the implementation of the relevant measures
by the respondent State. Rather, the Court finds that continuing to process all
length of proceedings cases in the usual manner will remind the respondent
State on a regular basis of its obligation under the Convention and in
particular resulting from this judgment.
IV. 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 applicant claimed pecuniary damage in
respect of lost profits, claiming that the excessively long court proceedings
prevented him from adapting his business activities in a more timely fashion. Without
submitting any documentary evidence he requested the Court to make an estimate as
to the damage suffered based on an assumed monthly income of 2,500 euros (EUR).
In respect of non-pecuniary damage for the excessive length of the proceedings
which had negatively affected his conduct of life he claimed EUR 200,000.
The Government contested the claim for pecuniary
damage, submitting that the applicant had not substantiated this claim. As
regards the non-pecuniary damage claimed, the Government maintained that the
claim was excessive and left the matter to the Court's discretion.
The Court observes that the applicant did not
submit any documentary evidence in regard of his claim for pecuniary damage; it
therefore rejects this claim. As regards non-pecuniary damage the Court
considers that the applicant must have sustained such damage. Ruling on an
equitable basis, it awards him EUR 10,000 under that head.
B. Costs and expenses
The applicant, providing documentary evidence,
also claimed EUR 4,566.22 for the costs and expenses incurred before the
domestic courts. For the proceedings before this Court the applicant, who was
granted legal aid in the amount of EUR 850, submitted a fee agreement
stipulating an hourly rate of EUR 200 and claimed EUR 2,600.
The Government
stressed that only reasonable costs for mandating a lawyer, which were caused
not by the proceedings as such, but only by their length, could be reimbursed.
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 are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers that the applicant has not established that the costs and
expenses claimed for the proceedings before the domestic courts, with the
exception of the costs and expenses for the proceedings before the Federal
Constitutional Court, were incurred by him in order to seek prevention or
rectification of the specific violation caused by the excessive length of the
proceedings. It therefore finds it reasonable to award the sum of EUR 1,740
for lawyer's fees before the Federal Constitutional Court. Furthermore, seeing
that in length of proceedings cases protracted examination of a case beyond a
“reasonable time” involves an increase in the applicants' costs (see, among other authorities, Sürmeli, cited
above, § 148), it finds it reasonable to award the applicant an
additional EUR 500 under this head. As regards counsel fees for the
proceedings before this Court the Court notes that as far as the applicant was
granted legal aid he is not liable to pay them and thus finds it reasonable to
deduct this amount and award EUR 1,750 under this head.
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
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention;
3. Holds that there has been a violation of
Article 13 of the Convention;
4. Holds that the above violations originated
in a practice incompatible with the Convention which consists in the respondent
State's recurrent failure to help ensuring that proceedings determining civil
rights and obligations are completed within a reasonable time and to take
measures enabling applicants to claim redress for excessively long civil
proceedings at a domestic level;
5. Holds that the respondent State must set
up without delay, and at the latest within one year of the date on which the
judgment becomes final in accordance with Article 44 § 1 of the Convention, an
effective domestic remedy or combination of such remedies capable of securing
adequate and sufficient redress for excessively long proceedings, in line with
the Convention principles as established in the Court's case-law;
6. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
(i) EUR 10,000 (ten thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,990 (three thousand nine hundred and ninety
euros), plus any tax that may be chargeable to the applicant, for costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant's
claim for just satisfaction.
Done in English, and notified in writing on 2 September
2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer
Lorenzen
Deputy Registrar President
