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You are here: BAILII >> Databases >> European Court of Human Rights >> ECKLE v. GERMANY (ARTICLE 50) - 8130/78 [1983] ECHR 8 (21 June 1983)
URL: http://www.bailii.org/eu/cases/ECHR/1983/8.html
Cite as: [1983] ECHR 8, (1991) 13 EHRR 556
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In the Eckle case,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court (*), as a Chamber composed of the
following judges:
_______________
(*) Note by the registry: In the version of the Rules applicable
when proceedings were instituted. A revised version of the Rules
of Court entered into force on 1 January 1983, but only in respect
of cases referred to the Court after that date.
_______________
Mr. R. Ryssdal, President,
Mr. Thór Vilhjálmsson,
Mr. W. Ganshof van der Meersch,
Mr. L. Liesch,
Mr. J. Pinheiro Farinha,
Mr. L.-E. Pettiti,
Mr. R. Bernhardt,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,
Deputy Registrar,
Having deliberated in private on 22 March and on 25 and 26 May 1983,
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:
PROCEDURE AND FACTS
1. The Eckle case was referred to the Court on 18 May 1981 by the
European Commission of Human Rights ("the Commission"). The case
originated in an application (no. 8130/78) against the Federal
Republic of Germany lodged with the Commission on 27 September 1977 by
two German nationals, Mr. Hans Eckle and his wife Marianne.
2. By a judgment of 15 July 1982, the Court found a breach of
Article 6 § 1 (art. 6-1) of the Convention in that the applicants had not
received a hearing within a reasonable time (Series A no. 51, point 2 of
the operative provisions and paragraphs 71-95 of the reasons, pp. 32-40).
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 the
pertinent details; for further particulars, reference should be made
to paragraphs 9 to 60 of the above-mentioned judgment (ibid.,
pp. 8-28).
3. At the hearings on 22 March 1982, counsel for the applicants
stated that, should the Court find a violation of the Convention, his
clients would be claiming just satisfaction under Article 50 (art. 50)
for the prejudice suffered as a result of the unreasonable length of
the proceedings and possibly for legal costs; he did not, however,
quantify their claims. The Government of the Federal Republic of
Germany ("the Government") did not take a stand on the matter.
In its judgment of 15 July 1982, the Court reserved the whole of this
question. The Commission was invited to submit to the Court, within
the coming two months, its written observations and, in particular, to
notify the Court of any friendly settlement at which the Government
and the applicants might have arrived (see point 3 of the operative
provisions and paragraph 96 of the reasons, ibid., p. 40).
4. After one extension of the above-mentioned time-limit by the
President of the Chamber and in accordance with his Orders and
directions, the registry received:
- on 15 October 1982, 19 November 1982 and 17 January 1983, through
the Secretary to the Commission, the Delegate's and the applicants'
respective observations;
- on 28 October 1982, 14 December 1982 and 14 February 1983, the
Government's comments.
These documents revealed that no friendly settlement had been reached.
5. By letter dated 6 October 1982, which was received at the
registry six days later, the lawyer for Mr. and Mrs. Eckle informed
the Registrar that he was no longer representing them; on 12 October,
they instructed Mr. von Stackelberg as their lawyer.
6. Mr. L. Liesch, substitute judge, took the place of
Mr. D. Evrigenis, who was prevented from taking further part in the
consideration of the case (Rules 22 § 1 and 24 § 1 of the
Rules of Court).
7. After consulting, through the Deputy Registrar, the Agent of the
Government and the Delegate of the Commission, the Court decided on
25 May 1983 that there was no call to hold hearings.
CLAIMS MADE BY THE APPLICANTS
8. The claims submitted by the applicants may be summarised as
follows:
(a) Mr. Eckle
In his observations of October 1982, the applicant asked the
Commission to request the Court to defer judgment until the Federal
Court of Justice (Bundesgerichtshof) had ruled on an action
(Amtshaftungsklage) brought by him against the Land of Rhineland-
Palatinate to recover compensation for all damage resulting from the
failure to comply with the requirements of Article 6 § 1
(art. 6-1). Having been invited on 20 October by the President of the
Chamber to file the applicant's claims without prejudice to the
decision to be taken on the request for deferment, the Commission
forwarded the said claims to the registry on 19 November.
Mr. Eckle sought to recover
(i) for material loss allegedly suffered on the professional,
economic and financial level:
- DM 5,049,284 and
- 19 per cent annual interest on the sum of DM 49,284;
(ii) for non-pecuniary damage:
- DM 703,124.50;
(iii) for costs and expenses:
- DM 241,482.40, on a provisional estimate,
- release from joint and several liability (Befreiung aus der Mithaft)
to pay the sum of DM 17,193.57 (court costs),
- 12 per cent annual interest on DM 16,000.
(b) Mrs. Eckle
Mrs. Eckle claimed
(i) for material loss allegedly suffered on the professional,
economic and financial level:
- DM 844,535.64;
(ii) for non-pecuniary damage:
- DM 421,875;
(iii) for costs and expenses:
- DM 93,691.45, on a provisional estimate,
- release from joint and several liability to pay the sum of
DM 17,193.57 (court costs),
- 12 per cent annual interest on DM 26,007.60.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
9. The Government requested that the Court,
"at its discretion but orientating itself by the [Government's]
observations, assess satisfaction for the necessary and reasonable
legal costs actually incurred by the applicants for the prevention of
the violation found, and, for the rest, reject the claims preferred".
AS TO THE LAW
I. Request to defer judgment
10. Article 50 (art. 50) of the Convention reads as follows:
"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 present 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 injured party."
11. In his initial observations, Mr. Eckle requested that the
proceedings regarding him be suspended until the Federal Court of
Justice had given its ruling on an action he had brought in 1964
before the Trier Regional Court (see paragraph 8 above). In his
submission, the European Court could only apply Article 50
(art. 50) once the domestic courts' final decision on reparation had
been delivered.
12. This submission, whilst not commented on by the Commission, was
contested by the Government, whose argument ran as follows.
Following the dismissal of his appeal on 4 March 1981 by the Koblenz
Court of Appeal (Oberlandesgericht), Mr. Eckle has up till now taken
no steps to expedite the examination of his petition for review on
points of law (Revision); on the contrary, he has several times asked
the Federal Court to extend the time-limit for the filing of his
supporting written pleadings, relying on the need to await the outcome
of the proceedings pending at Strasbourg. Furthermore, the object of
his action for damages is only in part the same as that of the
Strasbourg proceedings, in that the former is concerned solely with
the criminal prosecutions brought in Trier. Finally, the European
Court and the Federal Court perform their functions on different
levels and independently of one another, even though an award made by
the first deciding court can be taken into account by the other.
13. The Court would point out that Article 50 (art. 50) of the
Convention empowers it to afford just satisfaction to Mr. Eckle 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 15 July 1982.
This is precisely the case here: for when proceedings are continued
beyond the "reasonable time" laid down in Article 6 § 1 (art. 6-1), the
intrinsic nature of the wrong prevents complete reparation (restitutio
in integrum). This being so, the only claim the person concerned can
make is for just satisfaction. Even if an applicant has been able to
bring such an action before a court in the respondent State, the Court
is not bound to reject the claim put before it for just satisfaction
(see the De Wilde, Ooms and Versyp judgment of 10 March 1972, Series A
no. 14, pp. 8-9 and 10, §§ 16 and 20; the König judgment of
10 March 1980, Series A no. 36, pp. 14-15, § 15).
14. Nonetheless, where the victim of a breach found by the Court
chooses first to seek compensation under this head within the domestic
legal order, there is in principle nothing to preclude the Court from
deferring judgment until delivery of the final decision by the
national court, especially if the applicant has so requested. The
requirements of the proper administration of justice may even militate
in favour of such a course of action in certain circumstances.
However, Mr. Eckle has furnished no details as to the state of the
proceedings he has taken in Germany. His observations simply disclose
that his action is directed against the Land of the Rhineland-
Palatinate and was instituted before the Trier Regional Court on
16 April 1964, that is almost three years before the bringing of the
prosecutions in Cologne - a town situated in North Rhine-Westphalia -
(see the above-mentioned Eckle judgment, p. 19, § 37) and more
than thirteen years before the judgment delivered at Strasbourg on
15 July 1982; this action called on the Regional Court to hold the
Land liable for the damage allegedly caused to Mr. Eckle by the
relevant Trier authorities in conveying to his creditors the unfounded
suspicion that he was defrauding them.
According to the undisputed information supplied by the Government,
Mr. Eckle had his appeal dismissed on 4 March 1981, petitioned for a
review on points of law on 27 April 1981 and filed his supporting
written pleadings on 30 September 1982.
In these circumstances, it is difficult to discern how his action
could have in view the reparation of the prejudice resulting from the
two-fold failure to comply with the "reasonable time" requirement, as
found by the Court in its judgment of 15 July 1982. Consequently, the
suspension suggested by the applicant in October 1982 would not
contribute to, but would rather hinder, the proper administration of
justice. Moreoever, he did not revert to the matter when submitting
his quantified claims in November 1982 and January 1983 in response to
the invitation made to him by the Registrar on the instructions of the
President.
Accordingly, the Court rejects the request for deferment of judgment.
II. Application of Article 50 (art. 50)
15. The applicants sought just satisfaction for material loss,
non-pecuniary damage and legal costs.
A. Material loss
16. Mr. Eckle alleged a loss of earnings of 5 million marks
because of the forced sale of at least 250 building plots, in that at
the time of his imprisonment and prosecution (from 18 March 1967 until
11 January 1974) his firm was out of business, which prevented him
from disposing of the plots on the basis of freely negotiated
agreements.
He further claimed reimbursement of DM 49,284 plus 19 per cent annual
interest; he was obliged, so he asserted, to borrow this amount for
payment to the Federal Social Insurance Fund for Salaried Employees
(Bundesversicherungsanstalt für Angestellte) in order to maintain his
pension rights in respect of the years 1956 to 1973 and the year 1981.
17. For her part, Mrs. Eckle contended that if the Trier
proceedings had been conducted with the necessary diligence, she would
have been able to commence her professional activities in 1964 instead
of on 1 December 1974 and so able as from 1967 to earn profits similar
to those she made in 1980 as an insurance agent. Asserting that she
had lived without means from the moment of her husband's first arrest
on 18 March 1967, she assessed her losses as follows: DM 598,126 for
the period from 19 March 1967 to 30 November 1974, plus DM 246,409.64
for the period from 1 December 1974 to the end of 1979, that is a
total of DM 844,535.64.
18. In the submission of the Government, all these various claims
should be rejected, notably because of the absence of any causal link
between the material prejudice allegedly suffered and the violation
found by the Court. The Government's argument may be summarised as
follows.
Mr. Eckle would appear to be proceeding on the assumption that if the
national authorities had complied with Article 6 § 1 (art. 6-1), he would
have been able to continue the business activities in respect of which
he had been prosecuted. However, the judgment of 15 July 1982 did not
in the least affect his criminal conviction. In addition, he would in
any event have been obliged to pay contributions to the Federal Social
Insurance Fund.
With regard to Mrs. Eckle, she was hardly prevented from practising
her profession except during the hearings before the Trier Regional
Court and thereafter when serving the prison sentence imposed on her
by the Saarbrücken Regional Court. Here again these were lawful
measures which were unaffected by the Court's judgment and which did
not give rise to any entitlement to compensation.
19. The Delegate of the Commission expressed a similar viewpoint.
He considered in particular that the applicants had not shown any
causal connection between their claims and the breach of Article 6 § 1
(art. 6-1).
20. The Court shares this opinion.
The Court's judgment of 15 July 1982, whilst pronouncing the length of
the proceedings taken against the applicants to be unreasonable, did
not in any manner hold, or carry the implication, that their
prosecution, conviction and imprisonment were also in breach of the
Convention. The sole matter to be taken into consideration is thus
the prejudice possibly entailed by the fact of the two proceedings in
question having lasted beyond a "reasonable time".
Yet, the alleged financial losses of Mr. and Mrs. Eckle result from
the very existence and outcome of the prosecutions brought against
them. There is nothing in the evidence submitted to support the view
that the asserted damage was attributable to the failure to comply
with the requirements of Article 6 (art. 6).
Accordingly, no compensation is recoverable for material loss.
B. Non-pecuniary damage
21. Asserting that the Trier proceedings could have been
terminated by the end of 1963, the applicants concluded that the
unreasonable length of proceedings amounted to fourteen years and
three weeks (1 January 1964 - 23 January 1978). They also stressed
that, having regard to the overlapping of the proceedings in Cologne
(March 1967 - September 1977) and in Saarbrücken (end of 1963 -
April 1972), they were subjected to continuous prosecution in three
criminal cases.
On this basis, they sought as compensation for non-pecuniary damage a
lump sum assessed at a yearly rate of DM 50,000 for Mr. Eckle and
DM 30,000 for his wife. The explanation given by Mr. Eckle for this
difference was that during the relevant period he was, so he
maintained, arbitrarily deprived of his liberty for six and a half
years. He claimed under this head DM 703,124.50 and his wife
DM 421,875.
22. The Government disputed that the Trier proceedings could have
been terminated by the end of 1963. They further pointed out that the
period referred to by the applicants included phases which, in the
Government's submission, could not on any basis be treated as
relevant, namely the days of the trial hearings before the Saarbrücken
and Trier Regional Courts, the time spent by Mr. Eckle in custody on
remand and the time during which each applicant was serving his or her
prison sentence subsequent upon conviction in Saarbrücken. The
amounts claimed were, moreoever, preposterous. Finally, so the
Government argued, the acknowledgment by the domestic courts of the
breach of the Convention, the mitigation of the sentences imposed in
Trier and the discontinuance of the Cologne proceedings provided the
applicants with just compensation.
23. In the opinion of the Delegate of the Commission, the criminal
prosecutions brought must have constituted a source of some anxiety
for both Mr. and Mrs. Eckle and hence caused them a certain degree of
non-pecuniary damage. Nevertheless, the Delegate considered the sums
claimed to be out of all proportion. Having regard to the various
factors present, he suggested an award of modest compensation.
24. The applicants themselves, it has to be pointed out, did not
allege that the unreasonable length of the proceedings in question
provoked in them feelings of anxiety and distress. Moreover, at the
time they evinced no particular concern to have the proceedings
conducted as speedily as possible (see the above-mentioned Eckle
judgment, pp. 36 and 38, §§ 82 and 90).
The fact of exceeding the "reasonable time" must nonetheless have
exposed them to some disadvantages and inconvenience. It should
however be recalled that the Trier Regional Court, according to the
grounds given in its decisions, mitigated the sentences in view of the
inordinate length of time that had elapsed and that the Cologne
Regional Court ordered the discontinuance of the proceedings (ibid.,
pp. 16, 17, 18 and 27, §§ 27, 33, 35, 36 and 55); although these
circumstances did not cause Mr. and Mrs. Eckle to cease to be
"victims" within the meaning of Article 25 (art. 25), they are factors
that must be taken into consideration in assessing the extent of the
injury allegedly suffered (ibid., pp. 30-32, 38, 39 and 40,
§§ 66-70, 87, 88, 94 and 95). In addition, as was rightly observed by
the Delegate of the Commission, it cannot be overlooked that they were
charged with serious acts of fraud committed to the detriment of,
amongst others, persons lacking substantial financial resources and
that the Trier Regional Court imposed heavy prison sentences on them
(ibid., pp. 15-16 and 17, §§ 17 and 33).
Taking these factors together and on an equitable basis, as is
required by Article 50 (art. 50), the Court considers that the
finding of a violation contained in the judgment of 15 July 1982 has
already furnished sufficient just satisfaction, for the purposes of
Article 50 (art. 50), in respect of the alleged non-pecuniary injury
(see, mutatis mutandis, the Corigliano judgment of 10 December 1982,
Series A no. 57, p. 17, § 53).
C. Costs and expenses
1. Introduction
25. The applicants claimed recovery of the costs and expenses
occasioned by all the various remedies and defence measures employed
by them since the end of 1963, the date on which, in their contention,
the Trier proceedings could have ended.
According to the settled case-law of the Court, to be entitled to an
award of costs and expenses under Article 50 (art. 50), the injured
party must have incurred them in order to seek, through the domestic
legal order, prevention or redress of a violation, to have the same
established by the Commission and later by the Court or to obtain
reparation therefor (see the Minelli judgment of 25 March 1983,
Series A no. 62, p. 20, § 45). Furthermore, the Court has to be
satisfied that the costs and expenses were actually incurred, were
necessarily incurred and were also reasonable as to quantum (ibid.).
2. Costs and expenses incurred in the Federal Republic of Germany
26. The Court will first examine in turn the claims of each
applicant as to his or her costs and expenses in the Federal Republic
of Germany.
(a) Mr. Eckle
27. Under this head, Mr. Eckle sought in total DM 226,827.40 and
release from joint and several liability to pay the sum of
DM 17,193.57, together with interest of 12 per cent on DM 16,000.
He reserved the right to quantify certain other claims.
The Government could agree to DM 495.59; the Delegate of the
Commission considered that Mr. Eckle was entitled to recover DM 3,525,
or DM 4,791 provided he could prove payment of the difference between
these two amounts.
28. The Court rejects the following items as unconnected with the
violation found or even with the relevant facts of the case :
- agreed fees of Mr. von Stackelberg (advice "in the criminal
proceedings" between July 1964 and July 1968): DM 50,000;
- agreed fees of Mr. Bungartz (imprisonment of the applicant in the
Saarbrücken, Trier and Cologne proceedings): DM 12,000;
- agreed fees of Mr. von Stackelberg (various steps taken in the
Saarbrücken proceedings): DM 42,000;
- prosecution costs (DM 54,024.84) and release from joint and several
liability (DM 17,193.57) in the Trier proceedings;
- agreed fees and disbursements of Mr. von Stackelberg (advice
regarding detention on remand, Trier Regional Court): DM 2,321;
- agreed fees and disbursements of Mr. von Stackelberg (appeal against
the continuation of the detention on remand, decided by the Trier
Regional Court on 1 October 1971): DM 1,266;
- agreed fees of Mr. von Stackelberg (constitutional complaint against
the decision of 1 July 1971 by the Koblenz Court of Appeal refusing
the installation of a television set in the applicant's prison cell):
DM 2,500;
- agreed fees of Mr. von Stackelberg (constitutional complaint against
the decision by the Koblenz Court of Appeal refusing to grant the
applicant parole in order to participate in the civil proceedings):
DM 3,000;
- agreed fees of Mr. Meinecke (detention on remand in the Cologne
proceedings; 21 December 1974): DM 5,296.10;
- fees and disbursements of Mr. Meinecke (seizure of documents;
17 April 1970): DM 952.86;
- agreed fees of Mr. von Trützschler (arrest warrant; seizure of
documents): DM 3,000;
- agreed fees of Mr. von Stackelberg for four constitutional
complaints (refusal to nominate Mr. Becker as officially appointed
defence lawyer; detention on remand; levy of distress in respect of
payment of court costs; adjournment of civil proceedings):
DM 9,981.50;
- the following non-quantified claims: court costs in the Saarbrücken
and Cologne proceedings; costs of the action brought against the Land
of Rhineland-Palatinate; costs of the proceedings regarding the Eckle
firm's being struck off the register.
(i) Lawyer's fees and disbursements for a constitutional complaint
against the decision of 25 November 1971 by the Koblenz Court of
Appeal maintaining Mr. Eckle's detention on remand
29. Mr. Eckle sought recovery of DM 1,266 for the agreed fees and
disbursements of Mr. von Stackelberg who had on his behalf,
on 7 January 1972, challenged before the Federal Constitutional Court
a decision of 25 November 1971 by the Koblenz Court of Appeal ordering
his continued detention on remand.
The Government argued that this claim should be rejected since it did
not relate to a complaint against the length of the proceedings as
such.
In the view of the Delegate of the Commission, on the other hand, the
sum in question should be taken into consideration provided the
applicant could adduce proof of its payment.
30. The Court does not concur with the view expressed by the
Delegate.
Admittedly, the applicant did refer, inter alia, to Article 6
(art. 6) of the Convention in his constitutional complaint. It might
well also have been the case, as the Delegate assumed, that the
competent authorities would have been prompted to accelerate matters
had the Constitutional Court ordered the applicant's release.
However, it should not be overlooked that the complaint in question
was not aimed at securing a more expeditious conduct of the
proceedings: the complaint was directed against the unreasonable
length of the detention on remand and had as its sole object
Mr. Eckle's release from custody. It could have been of relevance in
relation to Article 5 § 3 (art. 5-3) - if, as the Government rightly
recalled, the Commission had not declared the application inadmissible
on that score - but not in relation to Article 6 § 1 (art. 6-1).
(ii) Lawyer's fees and disbursements for the petition for a review on
points of law (Revision) of the judgment of 17 March 1972 by the Trier
Regional Court
31. Mr. Eckle also claimed DM 10,866.50 for the agreed fees and
disbursements of Mr. von Stackelberg who had represented him in the
review proceedings.
According to the Government, the services of this lawyer were not
necessary as Mr. Becker had been nominated officially appointed
defence lawyer. In addition, Mr. von Stackelberg had pleaded a number
of matters and had, for example, applied on 7 April 1975 for the
prosecutions to be discontinued on the ground of limitation, but had
never objected to the dilatory nature of the proceedings or invoked
Article 6 § 1 (art. 6-1).
32. The evidence does not disclose that Mr. Eckle raised any such
objection before the Federal Court of Justice. Indeed he does not
even claim to have done so. However, whilst he complained essentially
of procedural irregularities, he also alleged contravention of the
substantive law (Sachrügen). Consequently, the Federal Court was
under a duty to review, of its own motion, the conformity with the law
of the judgment challenged, and in particular the sentence imposed.
This is why in its own judgment of 19 February 1976 the Federal Court
examined the reasoning of the Trier Regional Court regarding the level
of the sentence imposed; amongst other things, it re-affirmed the
reliance placed on the case-law holding that excessive length of
criminal proceedings may constitute a special mitigating circumstance
(see the above-mentioned Eckle judgment, p. 17, § 33; see also the
admissibility decision of 10 May 1979, appendix II to the Commission's
report).
In the second place, as the Government conceded, the supporting
written pleadings (Revisionsbegründung) were filed by Mr. von
Stackelberg who alone, according to the Federal Court's judgment,
appeared before it on behalf of Mr. Eckle.
Nevertheless, in view of his not having raised the issue of
"reasonable time" himself the applicant cannot recover in full
Mr. von Stackelberg's fees and disbursements. The Delegate of the
Commission suggested an award of DM 1,000. In the particular
circumstances of the case, the Court judges this amount to be
adequate.
(iii) Lawyer's fees and disbursements for the constitutional
complaint against the judgment of 17 March 1972 by the Trier Regional
Court and the judgment of 19 February 1976 by the Federal Court of
Justice; fees for the legal opinion of Professor Kloepfer
33. Mr. Eckle further claimed DM 10,866.50 in respect of agreed
fees and disbursements of Mr. von Stackelberg who applied on his
behalf to the Federal Constitutional Court on 24 May 1976 and
DM 16,000, together with 12 per cent interest, in respect of fees for
a legal opinion by Professor Kloepfer which was submitted to the
Constitutional Court.
The Government pointed out that only one of the four grounds of the
constitutional complaint related to the unreasonable length of the
proceedings. On the basis of the Federal Scale of Lawyers' Fees
(Bundesgebührenordnung für Rechtsanwälte), they were of the view that
he could claim DM 495.59. As far as the fees for the drafting of the
legal opinion were concerned, these were not necessarily incurred and
there was no causal link between them and the violation found, so the
Government argued, in that Mr. Eckle consulted Professor Kloepfer
simply to establish expiry of the limitation period and hence the
unlawfulness of his conviction.
The Delegate of the Commission thought it reasonable to award the
applicant DM 1,500 in respect of the fees and disbursements connected
with the constitutional complaint. On the other hand, he judged the
expenditure represented by Professor Kloepfer's expert opinion to be
unnecessary.
34. The Court agrees with the Government and the Delegate that
Mr. Eckle can recover only a proportion of the lawyer's fees and
disbursements: the constitutional complaint of 24 May 1976 was not
directed solely against the length of the proceedings but also
against, inter alia, the composition of the Regional Court and the
alleged unconstitutionality of a statutory rule of law applied by the
Federal Court of Justice.
35. The Government further contended that the amount claimed by
way of lawyer's fees and disbursements did not tally with the Federal
Scale.
To begin with, the Court would recall that in this context it is not
bound by domestic scales or standards (see the above-mentioned König
judgment, Series A no. 36, p. 18, § 23; the Sunday Times judgment
of 6 November 1980, Series A no. 38, p. 17, § 41).
Furthermore, German law does not preclude entering into a contract to
charge agreed fees higher than the levels laid down in the Federal
Scale. Although the lawyer admittedly cannot enforce payment of such
agreed fees except by virtue of a written declaration signed by his
client (Article 3 § 1, first sentence, of the Federal Scale), the
Court does not deem it necessary to seek proof of such an undertaking,
as the Government would wish to see it do, since there is no
suggestion in the evidence of any disaccord between
Mr. von Stackelberg and Mr. Eckle as to the latter's liability to pay
the sum indicated.
The Government expressed surprise that Mr. von Stackelberg should have
waited until October 1982, that is more than five years after the
decision of the Federal Constitutional Court (30 June 1977), before
drawing up the particular fee note in question as well as, moreover,
nearly all the other fee notes he has produced to the Court. For its
part, the Court has no cause to believe that it is confronted with a
bogus document drafted solely for the purposes of the proceedings
pending before it since the judgment of 15 July 1982.
In conclusion, the Court judges it appropriate, as was suggested by
the Delegate of the Commission, to award Mr. Eckle DM 1,500 in respect
of the lawyer's fees and disbursements connected with the
constitutional complaint of 24 May 1976.
36. On the other hand, the claim regarding the legal opinion of
Professor Kloepfer, an opinion that dealt with the consequences in law
of the unreasonable length of criminal proceedings, is to be rejected.
The Court, like the Delegate of the Commission, is not satisfied as to
the necessity of the expenditure involved (see, mutatis mutandis, the
above-mentioned Sunday Times judgment, pp. 16-17, § 37).
(iv) Fees of lawyers who represented Mr. Eckle in the proceedings
concerned with determination of a cumulative sentence
37. Finally, Mr. Eckle claimed DM 461.10 and DM 1,025 in respect
of fees for Mr. von Trützschler and Professor Vogler, respectively,
who had represented him in the proceedings concerned with
determination of the cumulative sentence.
The Government's contentions were the following. There exists no
causal link between these costs and the violation found by the Court.
Since a cumulative sentence must be fixed by the courts of their own
motion, the proceedings provided for under law for that purpose do not
figure amongst the remedies to be exhausted in accordance with
Article 26 (art. 26). Furthermore, the services of two lawyers were
not necessary. The applicant had, moreover, neither produced fee
notes nor established actual payment of the sums being claimed.
The Delegate of the Commission suggested retention of a figure of
DM 1,025, corresponding to the amount asked for in relation to
Professor Vogler's fees.
38. The brief of Mr. von Trützschler had been to challenge, on
behalf of Mr. Eckle, before the Koblenz Court of Appeal the decision
of 24 November 1977 whereby the Trier Regional Court determined the
cumulative sentence (see the above-mentioned judgment of 15 July 1982,
p. 18, §§ 35 and 36). Professor Vogler, for his part, acted for
Mr. Eckle before the Federal Constitutional Court to which he had
applied following the Court of Appeal's dismissal on 23 January 1978
of the above appeal (ibid.).
39. The Court, concurring with the Delegate, recognises that it
was in the applicant's interest to have the assistance of a lawyer
during these proceedings. According to the terms of the judgment of
19 February 1976 by the Federal Court of Justice, in determining the
cumulative sentence account had to be taken of the excessive length of
the proceedings, notably as regards "the period which [had] elapsed
between the hearing before the trial court and the moment when the
principle of res judicata took effect in respect of the judgment, and
which [would] elapse until the final decision" (ibid., p. 17,
§ 33). Thus, the determination of the cumulative sentence was a matter
of great importance for Mr. Eckle, especially since it could lead to
the violation of Article 6 § 1 (art. 6-1) being redressed (ibid.,
pp. 30-32, 38 and 39-40, §§ 66-70, 87, 88, 94 and 95).
40. The specific figures put forward appear plausible and
reasonable. In these circumstances, the Court does not deem it
necessary to call for the vouchers requested by the Government.
(b) Mrs. Eckle
41. For costs and expenses, Mrs. Eckle sought in total
DM 89,036.45 and release from joint and several liability to pay the
sum of DM 17,193.57, together with interest at 12 per cent on
DM 26,O07.60. Her lawyer gave notice of certain other outstanding
bills that had not yet been rendered.
The Government could agree to DM 600 and 4 per cent interest, the
outside limit being DM 800. According to the Delegate of the
Commission, Mrs. Eckle could claim recovery of DM 3,525.
42. The Court rejects the following items as unconnected with the
violation found or even with the relevant facts of the case :
- prosecution costs (DM 47,495.40) and release from joint and several
liability (DM 17,193.57) in the Trier proceedings;
- agreed fees and disbursements of Mr. Bungartz (representation of the
applicant in the Trier proceedings): DM 13,188.45;
- agreed fees and disbursements of Mr. Bungartz (representation of the
applicant in the Cologne proceedings): DM 7,000.
(i) Lawyers' fees and disbursements for the petition for a review on
points of law of the judgment of 17 March 1972 by the Trier Regional
Court
43. Mrs. Eckle claimed DM 10,866.50 and DM 6,000, together with
12 per cent interest, for the agreed fees and disbursements of
Mr. von Stackelberg and Professor Habscheid, respectively, who had
acted for her during the proceedings for a review on points of law.
The Government's arguments regarding this item were as follows.
Mrs. Eckle did not need the services of Mr. von Stackelberg since
Mr. Teuber had represented her as officially appointed defence lawyer
until 16 November 1974. Moreover, Mr. von Stackelberg ceased acting
for her at the beginning of 1975. On the other hand,
Professor Habscheid, who had been instructed by her on
26 January 1975, did refer to Article 6 § 1 (art. 6-1) in his written
pleadings of 26 January 1976. Consequently, she could recover, at the
outside limit, one-thirtieth of his fees.
According to the undisputed evidence supplied by the Government,
supporting written pleadings on behalf of the applicant were filed
with the Federal Court of Justice firstly by Mr. Teuber and
subsequently in March 1973 and April 1974 by Mr. von Stackelberg, but
neither lawyer formulated any complaint as to the unreasonable length
of the proceedings. Professor Habscheid, for his part, did place
reliance on Article 6 § 1 (art. 6-1) when submitting that the proceedings
should be discontinued on the ground of limitation.
This being so, and having regard to what has been said in relation to
Mr. Eckle's case (see paragraph 32 above), the Court agrees with the
Delegate of the Commission that Mrs. Eckle should be awarded the sum
of DM 1,000 under this head.
(ii) Lawyer's fees and disbursements for the constitutional complaint
against the judgment of 17 March 1972 by the Trier Regional Court and
the judgment of 19 February 1976 by the Federal Court of Justice
45. Mrs. Eckle further claimed DM 3,000 plus 12 per cent interest
for the fees of Professor Habscheid who, on her behalf, had brought
before the Federal Constitutional Court a complaint challenging both
the judgment of 17 March 1972 by the Trier Regional Court and the
judgment of 19 February 1976 by the Federal Court of Justice.
The Government drew attention to the fact that only one of the five
grounds of this complaint was concerned with the excessive length of
the proceedings. In their view, the applicant could therefore recover
no more than DM 600.
The Delegate of the Commission regarded a figure of DM 1,500 as
reasonable.
46. The Court likewise considers that Mrs. Eckle cannot be granted
reimbursement of the full amount paid out: in addition to the dilatory
nature of the proceedings, the matters raised in the constitutional
complaint of 18 May 1976 included the allocation of the various groups
of cases, violation of the principle of equality before the law and
disregard of the rights of the defence.
In the particular circumstances of the case, and in the light of what
has been stated in respect of Mr. Eckle with regard to the application
of the Federal Scale (see paragraph 35 above), the Court deems it
appropriate to award to Mrs. Eckle DM 1,500 under this head.
(iii) Fees of lawyers who represented Mrs. Eckle in the proceedings
concerned with determination of a cumulative sentence
47. Finally, Mrs. Eckle claimed DM 461.10 and DM 1,025, together
with interest at 12 per cent, for the fees of Mr. Schabio and
Professor Vogler, respectively, who had represented her in the
proceedings concerned with the determination of the cumulative
sentence.
For the reasons given at paragraph 37 above, the Government argued for
the outright rejection of this claim; the Delegate of the Commission
suggested an award of DM 1,025.
48. It would appear that on 24 October 1977 Mr. Schabio requested
the Trier Regional Court to fix a cumulative sentence, taking proper
account of the unreasonable length of the proceedings; on
2 December 1977, he appealed to the Koblenz Court of Appeal against
the decision that the Regional Court had delivered on 24 November 1977
(see the above-mentioned Eckle judgment, p. 18, §§ 35-36).
Professor Vogler, for his part, acted for Mrs. Eckle before the
Federal Constitutional Court to which he had applied following the
dismissal on 23 January 1978 of the above appeal (ibid.)
49. In these circumstances, the Court judges it equitable to award
Mrs. Eckle the amounts claimed; in this connection, the Court refers
back to what it has stated with regard to Mr. Eckle (see paragraphs 39
and 40 above).
3. Costs incurred in Strasbourg
50. The applicants, neither of whom received the benefit of free
legal aid before the Strasbourg institutions, each sought recovery of
DM 4,655 to cover the disbursements and fees of Professor Vogler who
had represented them before the Commission (DM 2,525) and then before
the Court (DM 2,130). Mrs. Eckle further claimed 12 per cent
interest, and Mr. Eckle DM 10,000 in respect of advances paid on
Mr. von Stackelberg's fees in the Article 50 (art. 50) proceedings.
The Government's replies may be summarised as follows. Without
disputing the applicants' entitlement to reimbursement of their costs
incurred in Strasbourg, the Government considered that a deduction
should be made in view of their applications having been unsuccessful
in relation to three complaints declared inadmissible by the
Commission. Also, the difference in the size of the claims made by
Mr. and Mrs. Eckle dictated a different apportionment of the fees,
namely one-third for Mrs. Eckle and two-thirds for her husband.
Furthermore, the applicants had produced no detailed vouchers or
evidence of any payment whatsoever. As far as Mr. von Stackelberg's
fees were concerned, these should be calculated in accordance with the
Federal Scale and on a pro rata basis, that is in proportion to the
degree of success of the claims made (amounting to more than seven
million marks). Finally, the sums sought for Professor Vogler
bordered on the upper limit of what could be regarded as reasonable in
comparison with the Federal Scale and Mr. von Stackelberg's services
had essentially consisted offorwarding written statements and files
prepared by the applicants. Subject to the foregoing, the Government
left it to the discretion of the Court to settle the rates recoverable
for the costs and expenses.
The Delegate of the Commission submitted that the claims be acceded
to, subject to reducing to DM 1,000 the sum to be awarded to each
applicant in relation to the Article 50 (art. 50) stage of the
proceedings.
51. The Court is unable to agree with the Government in its
proposal to make a deduction from the costs connected with the
proceedings before the Commission. The applicants did, it is true,
unsuccessfully plead complaints regarding the Saarbrücken proceedings,
Article 6 § 2 and Article 5 § 3 (art. 6-2, art. 5-3) (see the
above-mentioned Eckle judgment, pp. 28-29, § 61). Nevertheless,
and in contrast to what occurred in the case of Le Compte, Van Leuven
and De Meyere to which the Government referred (see the judgment of
18 October 1982, Series A no. 54, p.10, § 21), the complaints in
question failed at the admissibility stage. Furthermore, the
Commission did not reject them as being manifestly ill-founded, and
hence after a preliminary inquiry into the merits, but for being out
of time (Saarbrücken proceedings and Article 5 § 3) (art. 5-3)
and for non-exhaustion of domestic remedies (Article 6 § 2)
(art. 6-2). As is apparent from the decision on admissibility
(appendix II to the Commission's report), the examination of these two
questions of admissibility (in the strict sense of the term) was not
of such complexity that its outcome could warrant the deduction called
for by the Government.
Nor does the Court deem it necessary, in the particular circumstances
of the case, to apportion the costs and expenses in a different manner
from that suggested by the applicants themselves.
With regard to the DM 10,000 claimed by way of advance payment on
Mr. von Stackelberg's fees, the Court concurs with the Government and
the Commission in finding this item to be out of proportion with the
actual work performed by this lawyer during the Article 50 (art. 50)
stage of the proceedings, especially when compared with the services
rendered earlier by Professor Vogler before the Commission and the
Court. As was rightly pointed out by the Government, the contribution
of Mr. von Stackelberg was in essence limited to forwarding, together
with a covering letter, the claims and documents of his clients. His
memorandum of 13 January 1983 constitutes an exception, in that he
furnished replies to the Government's observations. Consequently, the
Court concurs with the Delegate's proposal on this item and awards
DM 1,000 to each applicant.
As far as the amounts asked for in respect of Professor Vogler are
concerned, the Court regards these as plausible and reasonable;
accordingly, it does not deem it necessary to call for the vouchers
requested by the Government.
4. Interest
52. In all the circumstances of this case, the Court does not
consider it appropriate to allow interest on the sums awarded in
respect of costs and expenses.
5. Recapitulation
53. The items accepted by the Court in paragraphs 32, 35, 40, 44,
46, 49 and 51 amount to a total of DM 9,641.10 for each applicant.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that the respondent State is to pay to each of the applicants
nine thousand six hundred and forty-one marks and ten pfennigs
(DM 9,641.10) in respect of costs and expenses and rejects the
remainder of the claims for just satisfaction.
Done in English and in French, the French text being authentic, at the
Human Rights Building, Strasbourg, this twenty-first day of June, one
thousand nine hundred and eighty-three.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar