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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> KÖNIG v. GERMANY (ARTICLE 50) - 6232/73 [1980] ECHR 2 (10 March 1980)
URL: http://www.bailii.org/eu/cases/ECHR/1980/2.html
Cite as: (1980) 2 EHRR 469, [1980] ECHR 2
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In the König case,
The European Court of Human Rights, taking its decision in plenary
session in application of Rule 48 of the Rules of Court and composed
of the following judges:
Mr. G. BALLADORE PALLIERI, President,
Mr. G. WIARDA,
Mr. H. MOSLER,
Mr. M. ZEKIA,
Mr. J. CREMONA,
Mr. THÓR VILHJÁLMSSON,
Mr. W. GANSHOF VAN DER MEERSCH,
Mrs. D. BINDSCHEDLER-ROBERT,
Mr. D. EVRIGENIS,
Mr. P.-H. TEITGEN,
Mr. G. LAGERGREN,
Mr. L. LIESCH,
Mr. F. GÖLCÜKLÜ,
Mr. F. MATSCHER,
Mr. J. PINHEIRO FARINHA,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 24 and 25 October 1979 and on
27 February 1980,
Delivers the following judgment, which was adopted on the
last-mentioned date, on the application in the present case of
Article 50 (art. 50) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention"):
PROCEDURE
1. The König case was referred to the Court by the Government of the
Federal Republic of Germany ("the Government") in February 1977
and, the following month, by the European Commission of Human Rights
("the Commission"). The case originated in an application against
the Federal Republic of Germany lodged with the Commission in 1973
by a German citizen, Dr. Eberhard König.
2. The applicant complained of the dilatory nature of proceedings
instituted by him before the Frankfurt Administrative Court. By
judgment of 28 June 1978, the Court held that the duration of the
said proceedings had exceeded the "reasonable time" stipulated by
Article 6 par. 1 (art. 6-1) of the Convention (points 3 and 4
of the operative provisions and paragraphs 105 and 111 of the reasons,
Series A no. 27, pp. 37, 40 and 41).
The Court also reserved the whole of the question of the application
of Article 50 (art. 50). It invited the Commission's Delegates to
transmit to it, within three months from the delivery of the judgment,
the applicant's claims together with any observations which the
Delegates might have thereon and decided that the Government should
have the right to reply to such claims and observations within two
months from the date on which the Registrar should have communicated
them to the Government; the further procedure was reserved (point 5 of
the operative provisions and paragraph 114 of the reasons, ibid.,
pp. 41 and 42).
3. On 28 September 1978, the President of the Court granted the
Delegates' request for an extension until 6 October of the timelimit
applicable to them. Their observations were received at the registry
on the last-mentioned date, accompanied by a letter sent to the
Commission on 18 September by Dr. König's lawyer, Mr. Hofferbert.
On 11 December, the time-limit applicable to the Government was
extended by the President until 13 January 1979.
The Government's memorial was filed at the registry on 16 January.
On 26 March, the Secretary to the Commission informed the Registrar
that the Delegates did not intend to reply thereto and that, whilst
the Court could call on them for any further assistance it might
require, they saw no necessity for oral hearings.
4. On 16 May, the Court deliberated on the procedure to be followed.
After consulting, through the Deputy Registrar, the Delegates of the
Commission and the Agent of the Government, the President directed
on 12 June that oral hearings would be held on 23 October. At the
same time he invited those appearing before the Court to complete
their written pleadings during the hearings should they so desire,
to reply to several questions listed in his Order and, as regards
the Commission, to produce to the Court various documents.
5. On 27 July, the Deputy Secretary to the Commission advised the
Registrar that the Delegates had in mind to reply to the
Government's memorial and the Court's questions during the hearings.
Documents, the majority of which were referred to in the aforesaid
Order of 12 June, were transmitted to the registry by the Commission
and the Government on 20 September and 22 October and on 8 and
11 October, respectively.
6. On 23 October, the Court held a short preparatory meeting
immediately prior to the opening of the hearings. It took note of
the Delegates' intention to have the assistance of Mr. Hofferbert
and authorised him to speak in German (Rules 29 par. 1 in fine and
27 par. 3).
7. The oral hearing took place in public on the morning of
23 October at the Human Rights Building, Strasbourg.
There appeared before the Court:
- for the Government:
Mrs. I. Maier, Ministerialdirigentin at the Federal Ministry of
Justice, Agent,
Mr. H. Bonk and Mr. H. Stöcker, Regierungsdirektoren at the same
Ministry, Advisers;
- for the Commission:
Mr. J. Frowein, Delegate,
Mr. H. Hofferbert, the applicant's lawyer, assisting the Delegate
under Rule 29 par. 1, second sentence, of the Rules of Court.
The Court heard addresses by Mr. Frowein and Mr. Hofferbert for the
Commission and by Mrs. Maier for the Government, as well as their
replies to the questions put by the Court (see paragraph 4 above).
Mrs. Maier spoke in German pursuant to the Court's decision of
29 September 1977 (Series A no. 27, p. 7, par. 10).
The Government filed several documents during the hearing and
subsequently on 3 January 1980.
AS TO THE FACTS
8. The only outstanding matter to be settled is the question of the
application of Article 50 (art. 50) in the present case. Accordingly,
as regards the facts, the Court will confine itself here to giving
some brief particulars; for the remaining details, reference should be
made to paragraphs 15 to 81 of the Court's judgment of 28 June 1978
(ibid., pp. 7-27).
9. That judgment concerned the length of actions brought by
Dr. König before the Frankfurt Administrative Court in 1967 and in 1971
to challenge, respectively, the withdrawal of the permit to run his
clinic and the withdrawal of the authorisation to practise medicine.
In the second matter, the Administrative Court had dismissed the
applicant's action by a judgment delivered on 9 June 1976 which had
been affirmed by the Hessen Administrative Court of Appeal
on 2 May 1978. Dr. König lodged an appeal (Nichtzulässigkeitsbeschwerde)
and an application to quash (Revision) but these were rejected by the
Federal Administrative Court (Bundesverwaltungsgericht), in two final
decisions, on 10 September and 18 October 1979.
In the case concerning the clinic, the Franfurt Administrative Court
had dismissed Dr. König's action on 22 June 1977. An appeal by him
against that decision is still pending before the Hessen
Administrative Court of Appeal which, with the agreement of the
parties, stayed the proceedings on 21 February 1979 pending the
outcome of the above-mentioned proceedings before the Federal
Administrative Court.
10. After delivery of the Court's judgment of 28 June 1978, the
Government and the applicant attempted, with the Commission's
assistance, to arrive at a friendly settlement of the latter's
claims, details whereof had been given by Mr. Hofferbert in his
letter of 18 September 1978 (see paragraph 3 above). The attempt met
with failure in November 1978: Dr. König found that the Government's
offer of DM 20,000 in full and final settlement was not sufficient.
11. The applicant seeks pecuniary compensation for the two heads of
damage allegedly caused to him by the violation of Article 6 par. 1
(art. 6-1): he maintains that his financial and professional situation
may have been permanently ruined and, secondly, that his personal and
professional reputation had been indirectly lowered. Without
quantifying his claims, he furnishes certain particulars - regarding
notably the average annual income he could have anticipated as a
medical practitioner and as the head of a clinic - on the basis of
which he considers it possible to gauge the extent of his aggregate
loss and to assess the fraction thereof attributable to the fact that
the "reasonable time" was exceeded. In addition, the applicant asks
for reimbursement of the expenses he incurred both in Germany, in
order to expedite the hearing of his actions, and before the
Convention institutions.
Dr. König leaves the assessment of the sum to be awarded to him to
the Court's discretion, thereby confirming the position he had
adopted in 1977 (Series A no. 27, p. 41, par. 113).
12. In their observations of 6 October 1978 (see paragraph 3 above),
the Commission's Delegates stated that they did not wish to comment
on the first of the applicant's claims which they saw as being
concerned with the consequences of the two withdrawals of
authorisation; at the hearing, they submitted that in their opinion
the attribution of specific material losses to the breach found by
the Court was impossible, at least on the strength of the evidence
before it. On the other hand, the Delegates suggest that account
should be taken of the fact that the applicant was left in a
prolonged state of uncertainty as to his professional future, and
this at a time of life - between the ages of forty-nine (in 1967)
and sixty (in 1978) - when a man is normally at the peak of his
career. They also consider that the breach of Article 6 par. 1
(art. 6-1), taken by itself, may be another factor having a
bearing on an award of just satisfaction.
As far as concerns the costs of the proceedings, the expenditure
incurred by Dr. König in order to expedite the domestic litigation
and to present his case in Strasbourg is regarded by the Delegates
as a relevant item. They express no firm view as to whether the
same applies to the expenditure arising from his applications to the
German courts for restoration of the suspensive effect of his appeal
against the withdrawel of the authorisation to practise; in their
opinion, those applications were aimed not at speeding up the
proceedings but at limiting the consequences of their excessive
length. Neither do the Delegates comment on the justification for
the figures given by the applicant.
13. The Government's position is as follows: there is no causal link
between the breach found by the Court and the alleged damage to
Dr. König's professional career; on the other hand, "reasonable",
"necessary" and proven costs resulting from the exercise of the
domestic legal remedies can give rise to compensation to the extent
that those remedies were aimed at accelerating the procedure;
furthermore, the "reasonable costs" incurred in connection with
the proceedings before the Convention institutions should be
reimbursed; finally, it is for the Court to determine whether the
applicant should be awarded monetary compensation for the
"non-material" injury he suffered by reason of the mere fact that the
"reasonable time" was exceeded.
FINAL SUBMISIONS MADE TO THE COURT
14. At the hearing, the Government requested the Court to "determine,
in accordance with Article 50 (art. 50), just satisfaction for the
applicant", "the amount and constituent elements" thereof being left
to the Court's discretion.
AS TO THE LAW
15. Article 50 (art. 50) of the Convention empowers the Court to
afford Dr. König just satisfaction on condition that, inter alia, "the
internal law" of the Federal Republic of Germany "allows only partial
reparation to be made for the consequences" of the breach found by the
judgment of 28 June. This is indeed the case here: for when
proceedings are continued beyond the "reasonable time" laid down in
Article 6 par. 1 (art. 6-1), the intrinsic nature of the wrong
prevents complete reparation (restitutio in integrum). This being so,
the only claim the applicant can make is for just satisfaction. Even
if he had been or were still able to bring such an action before a
court in his own country, the Court would not, for the reasons
explained in the De Wilde, Ooms and Versyp judgment of 10 March 1972
(Series A no. 14, pp. 8-9 and 10, par. 16 and 20), be bound to reject
the request put before it for just satisfaction. Moreover, those
appearing before the Court concur in thinking that German law does
not, in the circumstances, provide the applicant with any appropriate
remedy allowing full pecuniary indemnification.
16. Dr. König is seeking compensation for the various heads of
injury allegedly sustained as a result of the inordinate length of
the proceedings before the Frankfurt Administrative Court, as well
as reimbursement of the costs he has incurred in Germany, in order
to expedite the proceedings, and then before the Convention
institutions.
17. According to the Delegates of the Commission, in order to decide
Dr. König's claims it is first necessary to determine the extent to
which the two sets of proceedings have exceeded the "reasonable
time". In their submission, in neither action can a period greater
than four years be regarded as compatible with Article 6 par. 1
(art. 6-1). For the applicant, the proceedings could have been brought
to a close in 1973 or even earlier.
In its judgment of 28 June 1978, the Court did not endeavour to
quantify the "unreasonable time" by indicating, even
approximately, on what dates it began or what overall period it
covered. In point of fact, such an assessment seemed and still seems
hardly possible in view of the Court's conclusion that,
independently of the delays attributable to the applicant, the
failure to observe the requirements of Article 6 par. 1 (art. 6-1)
stemmed from a series of circumstances affecting the conduct of the
proceedings by the Second and Fourth Chambers of the Frankfurt
Administrative Court (Series A no. 27, pp. 34-37 and 38-40, par. 105
and 107-111).
Thus, the action relating to the withdrawal of the autorisation to
run the clinic opened with an exchange of written pleadings
extending over almost seventeen months; the first measure of
investigation was not taken until twenty-one months after
proceedings had begun and seventeen months elapsed before the Fourth
Chamber of the Administrative Court obtained the evidence given
before the professional tribunals; the transmission of the case-file
to the authorities and courts before whom Dr. König had brought his
various appeals and applications occasioned appreciable delays:
finally, more than seven years after the action had been started the
Fourth Chamber postponed judgment until the outcome of the
proceedings then pending before the Second Chamber, proceedings
which at that time were likewise stayed (Series A no. 27, pp. 36-37,
par. 104).
In the case concerning the withdrawal of the authorisation to
practise, only after three years and nine months did the Second
Chamber fix the first sitting for the hearing of evidence from
witnesses and of oral pleadings; the Chamber had waited more than
ten months before deciding to order the joinder of the Regional
Medical Society whose complaints had set in motion the procedure
before the professional tribunals and then led to withdrawal of the
two authorisations; there also, the forwarding of the case-file to
various authorities and courts entailed considerable delays; above
all, twenty-three months after the commencement of the action the
Chamber postponed judgment for twenty-one months, the reason being
that it wished to kwow the result of the criminal prosecution
launched more than a year previously against the applicant (Series A
no. 27, pp. 39-40, par. 110).
Being both overlapping and inter-connected, the delays found by the
Court hardly lend themselves to a simple process of addition, but
they are undeniable and doubtless caused the proceedings to be
protracted by some years.
It is on the basis of these facts that the Court found a breach of
Article 6 par. 1 (art. 6-1) and must now perform the function
conferred by Article 50 (art. 50).
18. Before examining in detail Dr. König's claims, the Court recalls
that its judgment of 28 June 1978 was not concerned with the
validity of the contested withdrawal of the autorisation but solely
with the conduct of the actions brought before the Frankfurt
Administrative Court. The various heads of injury possibly
occasioned by the withdrawals themselves cannot therefore be treated
as relevant items. The only heads of injury capable of giving rise
to an award of just satisfaction are those which the applicant would
not have sustained had the two actions come to a close within a
reasonable time.
19. Dr. König alleges such heads of injury but he does not prove
their existence or specify their extent; neither does he indicate the
sums to which he considers himself entitled by way of just
satisfaction. There is no denying that, as was stated by the
Commission's Delegates, it is in fact an extremely difficult matter to
identify with precision the prejudice suffered as a result of the
undue length of the domestic proceedings. Although applicants should
as a rule quantify their claims, the Court would be failing to pay
proper regard to the principle of equity imposed by Article 50
(art. 50) were it not to take into consideration the problems
confronting Dr. König in this respect. Accordingly, the Court did not
deem it appropriate to have Dr. König called on to plead the exact
amount of reparation he was claiming.
The Court points out that while the fact of exceeding the
"reasonable time" could not of itself have damaged the applicant's
reputation, as he contended it did, throughout the whole period it
lasted he was kept in a state of "prolonged uncertainty" (see
Series A no. 27, p. 37, par. 105) by reason of the dilatory nature
of the two sets of proceedings in question. At the time when the
judgment of 28 June 1978 was adopted, the proceedings had been
pending for more than ten years and ten months in the first action
(the running of the clinic) and more than seven years and one month
in the second action (the practice of medicine).
Such a state of affairs is likely to have led Dr. König to defer
unduly, in view of his age, the search for an alternative career.
This factor must be taken into account by the Court, even though it
has not been established that openings for adaptation to another
profession were available to Dr. König. In addition, the inordinate
protraction of the proceedings relating to the running of the clinic in
all probability prejudiced the applicant in prompting him to
postpone the sale or lease of the clinic and thereby to let pass
certain opportunities or possibilities. Finally, the prolonged
uncertainty in which he was kept for a few further years, whilst
awaiting the ever problematical outcome of the litigation, was a
source of permanent and deep anxiety for him; in itself, this caused
him non-pecuniary injury.
None of the above elements of damage lends itself to a process of
calculation. Taking them together on an equitable basis, as is
required by Article 50 (art. 50), the Court considers that under this
head the applicant should be afforded satisfaction assessed
at DM 30,000.
20. Dr. König can properly make an additional claim for recovery of
the costs he disbursed in his litigation before the German courts
and before the Convention institutions. This is in accordance with
the Neumeister judgment of 7 May 1974 where the Court distinguished
"between damage caused by a violation of the Convention and the
necessary costs which the applicant has had to incur in order to try
to prevent such violation, to have it established by the Commission
and later by the Court and to obtain, after judgment in his favour,
just satisfaction either from the competent national authorities or,
if appropriate, from the Court" (Series A no. 17, pp. 20-21,
par. 43).
21. Accordingly, the applicant is in the first place entitled to
reimbursement of sums expended in exercising such remedies as were
intended to expedite the proceedings.
In the applicant's submission, this was indeed the case with each of
the ten remedies he lists. The Court notes, however, that five of
the remedies, for example the constitutional applications of
11 March, 29 November and 9 December 1975, sought the restoration of
the suspensive effect of the objection he had logded against the
withdrawal of the authorisation to practise. Although referring to
the dilatory nature of the actions in question, these remedies were
not aimed at accelerating the progress of the actions but at
granting Dr. König relief from the immediate effects of the
withdrawal; consequently, the costs thereby incurred are not
material for the purposes of Article 50 (art. 50). On this point
the Court concurs with the Government's line of reasoning.
22. There remain five constitutional applications which the
Government do not contest were brought with the object of expediting
the actions pending before the Frankfurt Administrative Court,
namely the applications lodged by Mr. Demme on 18 October 1973 in
the second action and on the following day in the first action, by
Mr. Schilling on 12 November 1973 in both actions and by
Mr. von Stackelberg on 27 March 1975 in the second action.
In the Government's submission, only those applications which were
necessary or reasonable should be treated as relevant. In any event,
they add, if the Federal Scale of Lawyers' Fees (Bundes-
gebührenordnung für Rechtsanwälte) is taken as a basis, the
applicant could claim approximately DM 2,200 and not the DM 2,875.65
he is seeking.
23. The Court is of the view that Dr. König's claim is justified under
Article 50 (art. 50) if and to the extent that the remedies he
exercised and his legal costs are reasonable in the circumstances of
the case (see, mutatis mutandis, the above-cited passage from the
Neumeister judgment of 7 May 1974).
The two applications lodged on 12 November 1973 do not fulfil this
condition since less than a month before Mr. Demme had applied to
the Constitutional Court with the same object in view and the latter
Court had not yet given its ruling. Consequently, the DM 1,000 paid
by the applicant to Mr. Schilling are to be deducted from the
above-mentioned sum of DM 2,875.65.
On the other hand, Dr. König is entitled to reimbursement of
the DM 1,875.65 paid to Mr. Demme and Mr. von Stackelberg for the
applications lodged on 18 October 1973, 19 October 1973 and
27 March 1975. This amount, though a little higher than that judged
legitimate by the Government, is not however disproportionate or
unreasonable. Admittedly, in the Neumeister judgment of 7 May 1974 the
Court proceeded on the basis of the scales in force at the relevant
time under the free legal aid scheme operated for proceedings before
the Commission and for applicants' relations with the Commission's
Delegates (Series A no. 17, p. 21, par. 44), but this decision stemmed
from the fact that Mr. Neumeister, unlike Dr. König, had not produced
detailed fee notes (Series B no. 15, p. 134; Series A no. 17,
pp. 19-20, par. 42).
24. As far as the proceedings before the Convention institutions are
concerned, the applicant did not receive free legal aid. He paid
DM 1,075.10 to Mr. Heldmann and FF 3,000 (the equivalent, at the
relevant time, of DM 1,738.20) to Mr. Burger, his two counsel before
the Commission; DM 1,000 to Mr. Burger and DM 2,140.60 to
Mr. Hofferbert, his lawyers at the merits stage (Article 6 par. 1)
(art. 6-1) before the Court; finally, DM 2,832 to Mr. Hofferbert,
for having assisted the Delegates during the proceedings relating to
Article 50 (art. 50).
Those appearing before the Court agree that the costs borne by
Dr. König under these various heads are relevant for the purposes of
Article 50 (art. 50), but they espress divergent opinions as to the
correct basis of calculation. The Governement consider that the proper
course would be to adopt a uniform European rule, in the event the
scale established by the Commission for free legal aid; they cite the
Neumeister judgment of 7 May 1974. The Delegates, for their part, find
it rather anomalous that applicants who are nationals of countries
where justice is less expensive should obtain full indemnification
whereas other applicants would have to pay a sometimes considerable
balance themselves.
The Court recalls that the decision reached in the above-cited
judgment is to be explained solely by the facts of the case (see
paragraph 23 above). In the present instance, the Court sees no
reason for refusing full reimbursement of the costs incurred insofar
as they prove reasonable.
25. The Government do not, in point of fact, raise any objection to
the requests concerning the fees of Mr. Burger, but they do contest
the first of Mr. Hofferbert's two fee notes; they claim, in
particular, that Mr. Hofferbert's assistance was not indispensable.
The Court agrees with the Governement's line of thinking. Mr. Burger
alone appeared before the Court in 1977 to assist the Commission's
Delegates in pursuance of Rule 29 par. 1, second sentence, of the
Rules of Court (see Series A no. 27, pp. 7 and 41, par. 13 and 113).
Mr. Burger had for a long time been acquainted with the brief in
Dr. König's case, since he had been instructed to represent the
applicant before the Commission. Furthermore, the applicant has not
shown that at the merits stage before the Court co-operation between
Mr. Burger and Mr. Hofferbert was essential.
According to the Government, the fees paid by the applicant to
Mr. Heldmann and then to Mr. Hofferbert, his lawyer during the
proceedings relating to Article 50 (art. 50), do not correspond to
the scales in force in the Federal Republic of Germany; these fees, so
it is said, amount to practically the double. They cannot however, in
the Court's view, be regarded as out of proportion.
26. Dr. König finally requests recovery of the personal expenses of
DM 1,269 occasioned, for the most part, by his journeys to
Strasbourg between 1973 and 1978. The Governement state that they
have no objection to make on this count.
According to Rule 26 par. 3 of the Commission's Rules of Procedure,
the applicant or his representative shall appear before the
Commission to present the application in an oral hearing appointed by
the Commission or for any other purpose if so invited by the
Commission. While the applicant does not have the status of a party
before the Court, his presence in the court-room is nevertheless of
great value, for it can provide the Court with the means of
immediately ascertaining, either directly or through the Delegates or
those assisting them (Rules 38 and 29 of the Rules of Court), the
applicant's views on the issues affecting him.
27. On the basis of these considerations, the Court assesses at
DM 9,789.95 the sum to be paid to Dr. König in respect of his legal
costs and personal expenses, to which are to be added DM 30,000
for the injury sustained as a result of the "reasonable time"
stipulated by Article 6 par. 1 (art. 6-1) having been exceeded
(see paragraph 19 above).
FOR THESE REASONS, THE COURT
Holds unanimously that the Federal Repulic of Germany is to pay
Dr. König compensation of DM 39,789.95.
Done in English and in French, the French text being authentic, at
the Human Rights Building, Strasbourg, this tenth day of March, one
thousand nine hundred and eighty.
For the President
Signed: Léon LIESCH
Judge
Signed: Marc-André EISSEN
Registrar