(Application no. 38033/02)
13 July 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Stork v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 19 June 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
1. Compatibility ratione materiae
27. In the case of Ferrazzini (cited above, § 29) the Court confirmed that tax disputes regularly fall outside the scope of civil rights and obligations – despite the pecuniary effects which they necessarily produce for the taxpayer – because tax matters still form part of the hard core of public-authority prerogatives.
28. In the present case, the applicants were requested to pay a contribution for the construction of local infrastructure which had an impact on their real estate. The contributions were imposed only on persons who had a personal interest in and took advantage of the construction. Thus, while taxes are levied to cover the general financial requirements of public funding, the contributions in question were destined to finance a specific project, namely the construction of a particular road.
2. Exhaustion of domestic remedies
34. Furthermore, bearing in mind that the Federal Constitutional Court refused to admit the applicants’ complaint about a length of over sixteen years, it is uncertain whether an earlier complaint about – correspondingly shorter proceedings – would have had more prospects of success. In any event, a constitutional complaint is not capable of affording redress for the excessive length of pending civil proceedings (see Sürmeli v. Germany [GC], no. 75529/01, § 108, ECHR 2006-...).
35. Finally, the Government failed to demonstrate that a complaint about the length of proceedings before the lower courts would have been capable of providing redress. In this respect, it has to be observed that the Federal Constitutional Court did not declare the applicants’ constitutional complaint about the length of proceedings inadmissible for failure to exhaust domestic remedies within the meaning of the first sentence of Section 90(2) of the Federal Constitutional Court Act.
1. Submissions made before the Court
2. The Court’s assessment
42. The Court observes that – despite the relatively low amount in dispute – the case was of some factual complexity, inter alia due to the nature of the evidence to be taken and assessed. In particular, the national decisions were based on several expert opinions concerning technical details of the alleged defects in the road construction.
43. As to the conduct of the applicants, the Court observes that they used the domestic proceedings as a platform for presenting their numerous requests for the taking of evidence, in particular for demanding expert opinions and specialists’ hearings on each and every point in spite of the disproportion between the procedural costs involved and the value in dispute. Furthermore, during the first three years the applicants only requested the indication of interim measures before the German courts. They lodged their action with the Administrative Court more than two years and eleven months after having lodged their administrative appeal although it could have been lodged three months after the introduction of the administrative appeal pursuant to Section 75 of the Code of Administrative Court Procedure (see “Relevant domestic law” § 20 above). In this respect the applicants failed to expedite the proceedings during a period of two years and eight months. Considering the total duration of the proceedings, this prolongation must however be regarded as small.
44. As to the conduct of the authorities, the Court considers that it might be reasonable for national courts to await under certain circumstances the outcome of parallel proceedings as a measure of procedural efficiency. However, this decision must be reasonable having regard to the special circumstances of the case (see König v. Germany, cited above, § 110; Boddaert v. Belgium, judgment of 12 October 1992, Series A no. 235 D, § 39; and Pafitis and Others v. Greece, judgment of 26 February 1998, Reports 1998 I, § 97). In the present case, the Municipality abstained from deciding on the applicants’ administrative appeal in view of the summary proceedings. Subsequently, the Administrative Court awaited the outcome of the criminal investigations and the outcome of the proceedings to preserve evidence. As a result, the German authorities required altogether more than seven and a half years to decide on the applicants’ administrative appeal. This delay cannot be justified by considerations of procedural efficiency. At second and third instance, the proceedings lasted about seven and a half years because the Federal Administrative Court twice remitted the case to the Court of Appeal who repeatedly failed to provide sufficient reasons for its decisions. This substantial delay is likewise attributable to the national courts which should have acted with particular expedience given the length of proceedings at that stage.
45. In the light of these factors and having regard to the overall duration of about sixteen years and five months, the Court finds that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
4. Holds unanimously
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,900 in respect of costs and expenses, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 13 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following joint dissenting opinion of Mr Butkevych, Mrs Tsatsa-Nikolovska and Mrs Botoucharova is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES BUTKEVYCH, TSATSA-NIKOLOVSKA AND BOTOUCHAROVA
To our regret, we cannot join the majority in their decision not to award any sums in respect of non-pecuniary damage under Article 41 of the Convention.
An award in respect of non-pecuniary damages was refused essentially on the basis of the finding that the applicants had “used the domestic proceedings as a platform for presenting their numerous requests for the taking of evidence, in particular for demanding expert opinions and specialists’ hearings on each and every point in spite of the disproportion between the procedural costs involved and the value in dispute” (see paragraph 43 of the judgment).
There is no need to comment on the above question because it is evidently the right of each party to the proceedings to request the taking of any kind of evidence. However, it is ultimately for the national courts to assess in each and every situation whether such requests are justified and whether it is necessary, for the proper administration of justice, to admit the evidence proposed (see Rizova v. the former Yugoslav Republic of Macedonia, 41228/02, § 50).
The conduct of the applicant is undoubtedly relevant to the assessment of the reasonableness of the length of the proceedings. In cases where that conduct “explains” all delays or the length of the proceedings as a whole, the Court has not hesitated to find that Article 6 has not been breached (see, for example, Ciricosta and Viola v. Italy, judgment of 4 December 1995, in which the proceedings had lasted sixteen years, but the conduct of the applicants was the primary reason for the delays and Z.G. v. Bulgaria (dec.), no. 48459/99, 21 November 2000, in which they had lasted approximately six years and nine months, but “the applicant [was] responsible not only for certain delays due to his numerous and apparently belated requests for submission of additional evidence but also in respect of the length of the proceedings as a whole “as he constantly changed his position on a relevant issue”.
In the present case, however, the Court found that there had been a violation of Article 6, notably because, as stated in paragraph 44, a delay of more than seven and a half years occurred as a result of the courts’ failure to give reasons, which resulted in the case being repeatedly remitted. The authorities were responsible for the ensuing delay. Thus, the impugned behaviour of the applicants – noted in paragraph 43 – was the cause of only some of the numerous delays in the proceedings under examination.
We consider that in these circumstances it was unjustified to reject the applicants’ claim for an award in respect of non-pecuniary damage. The fact that they had contributed to some of the delays in the proceedings might warrant a reduction of the award, but not a flat denial of any award. Finally, in our view, the overall length of the proceedings, which lasted more than sixteen years, should also be taken into consideration when determining whether an award should be made.