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KIRSTEN v. GERMANY - 19124/02 [2007] ECHR 150 (15 February 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/150.html
Cite as:
[2007] ECHR 150
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FIFTH
SECTION
CASE OF KIRSTEN v. GERMANY
(Application
no. 19124/02)
JUDGMENT
STRASBOURG
15
February 2007
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 Kirsten 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 22 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 19124/02) 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, Ms Gisela
Kirsten (“the applicant”), on 1 May 2002.
The
applicant was represented by Mr K.H. Christoph, a lawyer practising
in Berlin. The German Government (“the
Government”) were represented by their Agent, Mrs
A. Wittling-Vogel, Ministerialrätin, of the Federal
Ministry of Justice.
On
2 May 2005 the Court
decided to give notice of the application to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1944 and lives in Berlin.
From
1960 to 1979 she worked as a ballet dancer for the
Erich-Weinert-Ensemble (EWE), a national company of the German
Democratic Republic (GDR). In 1979 she terminated her career on stage
and worked for the company as a set and costume designer.
The
EWE paid the applicant her wages as a costume and set designer and,
in addition, a monthly allowance in the amount of 588 GDR marks
(hereafter „the allowance“). The
allowance was paid by virtue of the regulation of the Minister of
Culture (Anordnung über die Gewährung einer
berufsbezogenen Zuwendung an Ballettmitglieder in staatlichen
Einrichtungen der DDR) of 1 September 1976. Pursuant to
this regulation former members of ballets in the GDR were paid an
allowance at the end of their career on stage. The allowance accrued
after reaching the age of 35 and having worked for at least 15 years
as a dancer. It was paid, irrespective of other earnings, by the
former employer. Once the former dancer received an old-age or
invalidity pension the allowance was regularly paid by the National
Insurance of the GDR (Staatliche Versicherung der DDR).
After
the reunification of the GDR and the Federal Republic of Germany
(FRG) the EWE which formerly belonged to the National People's Army
(Nationale Volksarmee) of the GDR was incorporated into the
organisation of the Federal Ministry of Defence of the FRG. The
Ministry took over the contracts with the company's staff and
continued to pay the applicant her wages and the allowance. The
allowance and the retirement pensions were moreover converted and
paid in German Marks (DEM).
On
1 January 1992 the Ministry discontinued all allowance payments to
former ballet dancers with reference to Article 9 § 2 in
conjunction with Appendix II, Chapter VIII, Section H, paragraph III
Nr. 6 of the German Unification Treaty.
In
December 1992 the applicant brought an action with the Berlin Social
Court claiming the payment of the allowance.
On 24 August 1994 the Federal Social Court ruled in a
leading judgment that the social courts had no jurisdiction over
disputes concerning the allowance. It found that those disputes
belonged to the realm of civil – and more specifically –
labour law, inter alia because the granting and the amount of
the allowance were so closely linked to the contract of employment
and in particular to the respective wages.
On
13 January 1995 the Berlin Social Court referred the applicant's case
to the Frankfurt/Oder Labour Court.
On
15 May 1996 the Frankfurt/Oder Labour Court ordered the Ministry of
Defence to pay the applicant DEM 28,224 and the monthly allowance as
of January 1996. It pointed out that the wording of the pertinent
provision of the German Unification Treaty was ambiguous. The
provision could be interpreted as setting 31 December 1991 as the
final date to qualify for the allowance or as terminating permanently
the allowance payments from that date onwards. However, in view of
the principle of the protection of legitimate expectations
(Vertrauensschutz) the allowance payments could not be
permanently discontinued without an explicit and a precise regulation
in the German Unification Treaty. Therefore the provision had to be
construed as setting 31 December 1991 as the final date to
qualify for the allowance.
On
13 May 1998 the Brandenburg Regional Labour Court quashed the
decision of the Frankfurt/Oder Labour Court and rejected the
applicant's action. It admitted that the wording of the pertinent
provision was ambiguous. Referring to the leading judgment on the
allowance of the Federal Labour Court dated 24 March 1998, it
construed the provision as terminating the allowance payments as of
31 December 1991. It argued that the allowance had been paid out of
public funds and was an atypical benefit granted by the GDR.
Therefore it would have been necessary to rule explicitly that the
allowance was to be transferred into the united German legal system.
The judgement was served on the applicant on 15 October 1998.
The applicant subsequently lodged an appeal on points of law.
On
8 November 1998 the applicant lodged a constitutional complaint of
approximately fifty pages with the Federal Constitutional Court. She
inter alia complained that the length of the proceedings -
which were still pending before the Federal Labour Court - violated
Article 6 of the Convention.
On
26 January 1999 the Federal Labour Court rejected the applicant's
request for leave to appeal on points of law.
In
March 1999 the applicant submitted another fifty pages of
observations to the Federal Constitutional Court.
On
2 July 2002 the Federal Constitutional Court delivered a leading
decision on the ballet dancers' allowance. It referred to its leading
judgment of 28 April 1999, pursuant to which the pension rights
acquired in the GDR fell within the scope of Article 14 of the German
Basic Law protecting the right to property provided that the German
Unification Treaty recognised them as legal claims within the united
German legal system. The impugned allowance did accordingly not fall
within the scope of Article 14 of the German Basic Law as Article 9
of the German Unification Treaty prescribed that it would not be
transferred into the social and labour legislation of the FRG.
Furthermore, there had never been a legitimate expectation that the
allowance would be transferred into the united German legal system,
as in the legal system of the GDR, the allowance had already amounted
to a preferential treatment.
On
4 July 2002 the Federal Constitutional Court refused to admit the
applicant's constitutional complaint with reference to its leading
decision of 2 July 2002. The decision was served on the applicant's
lawyer on 3 August 2002.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
German reunification
As a result of the German reunification, which became
effective on 3 October 1990, the GDR acceded to the FRG. The
relevant domestic law concerning the details of this transition and
its legal framework, such as the German Unification Treaty and the
laws on the transfer of pension rights, are reproduced in the case of
Adam and others v. Germany ((dec.) no. 290/03,
1 September 2005).
2.
Case-load of the Federal Constitutional Court between 1999 and 2002
According
to the information submitted by the Government, the Federal
Constitutional Court had to face a heavy case-load after the German
reunification. They presented a list of the fifty major decisions
taken by the first chamber (Senat) of the Federal
Constitutional Court between March 1999 and July 2002. Out of these
cases, approximately ten concerned issues related to the German
reunification as such (e.g. complaints related to the expropriation,
usufructuary rights and restitution of property and the transfer of
pensions). The other decisions concerned regular constitutional
questions such as the surveillance of telecommunications, the
protection of private life (see decision of the Federal
Constitutional Court no. 1 BvR 653/96; and Von Hannover v.
Germany, no. 59320/00, ECHR 2004 VI), issues related to the
social law and family law as well as the restricted right of audience
(Singularzulassung) before German Appeals Courts (see decision
of the Federal Constitutional Court no. 1 BvR 335/97; and Wendenburg
and Others v. Germany (dec.), no. 71630/01, ECHR 2003 II).
3.
The Brandenburg Constitution and case-law of the Brandenburg
Constitutional Court
Article 52 § 4 of the Brandenburg Constitution
provides:
“Everyone has the right to a fair and expeditious
trial before an independent and impartial court. (...)”
On 14 July 1994 and on 28 March 2001 respectively, the
Brandenburg Constitutional Court examined constitutional complaints
about the length of proceedings before civil and administrative
courts. It held that the complaints were admissible but reached in
both cases the conclusion that the length of the impugned proceedings
did not violate Article 52 § 4 of the Brandenburg Constitution.
23. In its decision of 20 March 2003 (no. 108/02) concerning the
length of proceedings pending for over three years and five months
before the Cottbus Administrative Court, the Brandenburg
Constitutional Court found a violation of the right to a decision
within a reasonable time under Article 52 § 4 of the Brandenburg
Constitution. It held inter alia:
“It is for the Administrative Court to draw its
conclusion from the established violation of the applicant's right
under Article 52 § 4 of the Brandenburg Constitution and –
irrespective of the independence of the judiciary – to
terminate the unconstitutional circumstances.“
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the overall length of the proceedings and
in particular the length before the Regional Court and the Federal
Constitutional Court had been incompatible with the “reasonable
time” requirement, laid down in Article 6 § 1 of the
Convention, which 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...”
A. Admissibility
1. Applicability of Article 6 to the impugned
proceedings
The Government argued that Article 6 was not
applicable to the present proceedings because the matter at issue
belonged to the core area of public law. In their submissions, the
impugned allowance, which was entirely financed out of public funds,
constituted a form of state subsidy for professional dancers and was
not dependant on the payment of contributions nor paid in return for
faithful service to a company. It was moreover based on the
regulation of the Ministry of Culture and not on a contract of
employment. Finally, the allowance neither served as a social
security benefit as it was paid irrespective of other earnings.
The
applicant regarded Article 6 as applying in the instant case.
The
Court recalls that the concept of “civil rights and
obligations” within the meaning of the Article 6 is autonomous
but that the legislation of the State concerned is not without
importance in this context (see Perez v. France [GC], no.
47287/99, § 57, ECHR 2004 I; and Deumeland
v. Germany, judgment of 29 May 1986, Series A no. 100, §
62). It notes that the Federal Social Court ruled in a leading
decision that disputes over the allowance belonged to the realm of
labour law because the allowance was so closely linked to the
contract of employment and the occupation as ballet dancer (see §
10 above). The Court observes that the applicant was not affected in
her relations with the administrative authorities as such, acting in
the exercise of discretionary powers; she suffered an interference
with her means of subsistence and was claiming an individual,
economic right flowing from specific rules laid down in the
regulation of the Minister of Culture. The protection of this basic
right is, moreover, organised in such a way that at the judicial
stage disputes over it come within the jurisdiction of the labour
courts. Therefore, and despite the public law features pointed out by
the Government, the Court sees no convincing reason to question that
the entitlement to the allowance was a “civil” right
within the meaning of its case-law (see, mutatis mutandis,
Mennitto v. Italy [GC], no. 33804/96, § 28, ECHR
2000 X).
Article
6 § 1 therefore applies in the present case.
2. Exhaustion of domestic remedies
Furthermore,
the Government held that the applicant had not exhausted the domestic
remedies as she had failed to sufficiently substantiate her complaint
about the length of proceedings before the Federal Constitutional
Court. As to the effectiveness of this remedy, they mainly
reiterated the arguments which they submitted in the case of Sürmeli
v. Germany ([GC], no. 75529/01, §§ 80 - 91, ECHR
2006-...)
The
Government also asserted that the domestic remedies had not been
exhausted because the applicant had failed to lodge a complaint with
Brandenburg Constitutional Court against the length of proceedings
before the Frankfurt/Oder Labour Court and the Brandenburg Regional
Labour Court. As to the effectiveness of such complaints, the
Government referred to their submissions about a complaint to the
Federal Constitutional Court and named three decisions of the latter
court (see “Relevant domestic law and practice” §§
22 - 23 above).
The
applicant asserted that none of the remedies advocated by the
Government would in practice have made it possible to expedite the
proceedings.
The
Court recalls at the outset that under Article 35 of the
Convention, normal recourse should be had by an applicant to remedies
that are available and sufficient to afford redress in respect of the
breaches alleged. The existence of the remedies in question must be
sufficiently certain not only in theory but also in practice, failing
which they will lack the requisite accessibility and effectiveness
(see Dalia v. France, judgment of 19 February 1998,
Reports of Judgments and Decisions 1998-I, p. 87, § 38;
Horvat v. Croatia, no. 51585/99, § 38,
ECHR 2001-VIII; and Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 142, ECHR 2006 ...). Furthermore,
in the area of exhaustion of domestic remedies, it is incumbent on
the Government claiming non-exhaustion to convince the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was
capable of providing redress in respect of the applicant's complaints
and offered reasonable prospects of success (see Horvat, cited
above, § 39).
As
regards a constitutional complaint to the Federal Constitutional
Court, the Court reiterates that it has recently held that that
remedy is not capable of affording redress for the excessive length
of pending civil proceedings (see Sürmeli, cited above,
§ 108).
As regards a constitutional complaint to the
Brandenburg Constitutional Court, the Court notes that Article 52 §
4 of the Brandenburg Constitution guarantees the right to expeditious
proceedings and that a violation of this right may be alleged before
the Brandenburg Constitutional Court. However, the Government did not
demonstrate that the latter court is empowered to order specific
measures to speed up the proceedings in issue or able to award
compensation for unreasonably long proceedings. In its decision of
20 March 2003 (see “Relevant domestic law and practice”
§ 23 above) for instance, the Brandenburg Constitutional Court -
although it considered the impugned length of proceedings
unconstitutional - did not set any deadlines for the lower court but
rather underlined the latter court's independence. Therefore, the
Court is not satisfied that the Brandenburg Constitutional Court was
in the present case capable of affording sufficient redress in
respect of the violation alleged (see, mutatis mutandis,
Sürmeli, § 108, cited above).
The
Government's preliminary objection concerning the exhaustion of
domestic remedies must be dismissed.
Finally,
the complaint 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
The
period to be taken into consideration began in December 1992 when the
applicant lodged her complaint with the Berlin Social Court and ended
on 3 August 2002 when the decision of the Federal Constitutional
Court was served on the applicant's lawyer. It thus lasted nine years
and eight months for four levels of jurisdiction.
38. The Government underlined that the
Social Court had awaited the outcome of the leading case because it
had been undecided whether the social courts had jurisdiction over
disputes concerning the allowance. Likewise, the Regional Labour
Court had awaited the decision of the Federal Labour Court concerning
the leading case for reasons of procedural efficiency. The Government
further stressed the unique political context of the German
reunification and that the Federal Constitutional Court had been
faced with an immense workload. The latter court had had to rule on
more urgent cases of considerable political importance and had
attached priority to those cases which had affected a large number of
people. Furthermore, it first awaited for a certain number of cases
concerning the allowance to be filed in order to get the necessary
overview of the various cases. The leading decision on the allowance
was rendered only one and a half years after the last complaint
concerning the allowance was filed on 20 December 2000.
39. The applicant argued that the
German reunification could not justify the Federal Constitutional
Court's constant overload. Furthermore, the Government had failed to
specify which cases had been more urgent so as to justify the delay
occurred before the Federal Constitutional Court. Even if it had been
reasonable for the latter court to regroup the cases concerning the
allowance, it should subsequently have decided on these cases without
any delay.
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 considers that the case had been legally complex.
As
to the applicant's conduct, the Court takes note of her lawyer's
sometimes convoluted and confused submissions which contributed to
the length of proceedings as they unnecessarily distracted the
authorities from concentrating on the main issues (see, Stork v.
Germany, no. 38033/02, 13 July 2006, § 43; and, mutatis
mutandis, Smirnova v. Russia, nos. 46133/99 and
48183/99, § 86, ECHR 2003 IX (extracts)). Considering
the total duration of the proceedings, the applicant's contribution
insofar must however be considered as small.
With regard to the conduct of the national courts, the Court
underlines that it might be reasonable for them to await under
certain circumstances the outcome of parallel proceedings as a
measure of procedural efficiency. This decision must however be
proportionate 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; Pafitis and Others v. Greece,
judgment of 26 February 1998, Reports 1998 I, § 97;
and Stork, cited above, § 44). In the present case, it
was uncertain whether the social or the labour courts had
jurisdiction over disputes concerning the allowance and the Berlin
Social Court therefore abstained from deciding on the applicant's
case in view of the lead case pending before the Federal Social
Court. The Court thus finds that the length of approximately two
years before the Berlin Social Court may in the present case be
regarded as justified by considerations of procedural efficiency.
While
the parties agreed that the Frankfurt/Oder Labour Court had dealt
with the impugned case expeditiously, the proceedings had been
pending some two years and two months before the Regional Labour
Court. The Court accepts that a certain delay may be considered
proportionate since the latter court awaited the outcome of the
leading case pending before the Federal Labour Court. However, the
Court notes that the Regional Labour Court's judgment was served on
the applicant's lawyer almost seven months after the leading decision
of the Federal Labour Court had been rendered. Given the length of
proceedings at that stage, this delay cannot be justified by
considerations of procedural efficiency.
As to the proceedings before the Federal
Constitutional Court, the Court recalls that Article 6 § 1
imposes on the Contracting States the duty to organise their judicial
systems in such a way that their courts can meet each of its
requirements, including the obligation to hear cases within a
reasonable time. Although this obligation applies also to a
Constitutional Court, when so applied it cannot be construed in the
same way as for an ordinary court. Its role as guardian of the
Constitution makes it particularly necessary for a Constitutional
Court, sometimes, to take into account considerations other than the
mere chronological order in which cases are entered on the list, such
as the nature of a case and its importance in political and social
terms (see Wimmer v. Germany, no. 60534/00, § 30,
24 February 2005). However, although it might have been
appropriate to gain a certain overview of the various cases
concerning the allowance, the Court sees no reason why it was
necessary for the Federal Constitutional Court to wait until the last
complaint concerning the allowance was filed in order to process this
group of cases, including the one brought by the applicant.
Furthermore,
the Court has previously held that a length of three years and nine
months (see Schwengel v. Germany (dec.), no. 52442/99, 2 March
2000) and a length of four years and eight months (see Goretzki
v. Germany (dec.), no. 52447/99, 24 January 2002) before the
Federal Constitutional Court might be proportionate, particularly in
the unique context of the German reunification. The Court yet
underlines that the instant proceedings had already been pending
approximately six years when the case was referred to the Federal
Constitutional Court whereas in the cases just mentioned, they had
lasted not more than a year when the lower courts decided to adjourn
them in view of the precedent pending before the Federal
Constitutional Court. Accordingly, the latter court should have acted
with particular expedience in the present case given the length of
proceedings at that stage. The substantial delay is hence
disproportionate and cannot be justified by considerations of
procedural efficiency.
The Court finally observes that the delay cannot be
explained by the exceptional circumstances of the German
reunification taken alone (see, mutatis mutandis, Hesse-Anger
v. Germany, no. 45835/99, § 32,
6 February 2003). Pursuant to the list submitted by the
Government (see § 20 above), not more than ten of the fifty
major decisions issued by the first chamber of the Federal
Constitutional Court between March 1999 and July 2002 concerned
issues related to the German reunification as such. The unusual
length of proceedings is hence imputable to the Federal
Constitutional Court.
Finally, the Court observes that the allowance was
meant to cover a part of the applicant's pension and was therefore –
even if not her only means of existence – of decisive
importance for her.
Having
examined all the material submitted to it, the Court considers that
in the instant case the overall length of the proceedings and in
particular the length before the Regional Labour Court and the
Federal Constitutional Court was excessive and failed to meet the
“reasonable time” requirement. There has accordingly been
a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained that in Germany there was no court to
which application could be made to complain of the excessive length
of proceedings pending before the Federal Constitutional Court. She
relied on Article 13 of the Convention, which reads 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 held that Article 13 did not apply to proceedings before a
constitutional court as it would oblige the States to provide for an
endless chain of domestic remedies. In any event, in case of an
urgent matter, it was possible to loge a motion for an interim
injunction.
The
Court notes that this complaint is so closely linked to the one
examined above that it must therefore likewise be declared
admissible.
The Court further reiterates that the correct
interpretation of Article 13 of
the Convention is that this provision guarantees an effective remedy
before a national authority for an alleged violation of the
requirement under Article 6 § 1 to hear a case within a
reasonable time (see Kudła
v. Poland [GC],
no. 30210/96, § 156, ECHR 2000-XI). As established in its
case-law, it reiterates that the remedies available to a litigant at
domestic level for raising a complaint about the length of
proceedings are “effective”, within the meaning of
Article 13 of the Convention if they “[prevent] the alleged
violation or its continuation, or [provide] adequate redress for any
violation that [has] already occurred” (see Kudla,
cited above,
§ 158). Article 13
therefore offers an alternative: a remedy is “effective”
if it can be used either to expedite a decision by the courts dealing
with the case, or to provide the litigant with adequate redress for
delays that have already occurred (see Kudla, cited above,
§ 159; see also Scordino,
cited above, §§ 186-187).
Furthermore,
the Court is not called upon to examine the relevant law and practice
in abstracto, but to determine whether, in the light of the
Kudla judgment (cited above), there had been a remedy
compatible with Article 13 of the Convention available to grant the
applicant appropriate relief as regards her complaint about the
length of proceedings.
The
present proceedings exceeded the reasonable-time requirement under
Article 6 of the Convention inter alia because delay occurred
while the case was pending before the Federal Constitutional Court.
As to the Government's argument concerning the “endless chain
of domestic remedies” the Court notes that it had to deal with
a similar argument in the case of Kudla (cited above, §§
154 - 155) and that it held:
“As to the suggestion that requiring yet a further
remedy would result in domestic proceedings being made even more
cumbersome, the Court would observe that (...) there are examples
emerging from the Court's own case-law on the rule on exhaustion of
domestic remedies which demonstrate that it is not impossible to
create such remedies and operate them effectively (see, for instance,
Gonzalez Marin v.
Spain (dec.), no. 39521/98, ECHR 1999-VII, and Tomé
Mota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX).
If Article 13 is, as the Government argued, to be
interpreted as having no application to the right to a hearing within
a reasonable time as safeguarded by Article 6 § 1, individuals
will systematically be forced to refer to the Court in Strasbourg
complaints that would otherwise, and in the Court's opinion more
appropriately, have to be addressed in the first place within the
national legal system. In the long term the effective functioning, on
both the national and international level, of the scheme of human
rights protection set up by the Convention is liable to be weakened.”
The
Court sees no reason to depart from these principles in the present
case. It notes that the Government have not shown that any form of
relief was available for the delay caused by the Federal
Constitutional Court.
Therefore, there has been a violation of Article
13 in that the applicant had no domestic remedy whereby she
could enforce her right to a hearing within a reasonable time as
guaranteed by Article 6 § 1 of the Convention.
III. FURTHER COMPLAINTS UNDER ARTICLE 6 OF THE CONVENTION
AND ARTICLE 1 OF PROTOCOL NO. 1
The
Court has examined the remainder of the applicant's complaints as
submitted by her. However, having regard to all material in its
possession, the Court finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols (see, in particular, Adam and others,
cited above).
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
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 a total of 188,242.05 euros (EUR) for
pecuniary damage corresponding to the previous and future loss of the
allowance payments. She further claimed 5,000 EUR in respect of
non-pecuniary damage on account of the length of proceedings.
The Government contested these claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. It
however considers that the applicant must have sustained
non-pecuniary damage on account of the length of proceedings. Making
its own assessment on an equitable basis and having regard to the
nature of the Convention violations it has found, the Court awards
her EUR 3,000 under that head.
B. Costs and expenses
The
applicant also claimed 12,015.38 EUR for the costs and expenses
incurred before the domestic courts, 814 EUR of which before the
Federal Constitutional Court. She further claimed 37,596 EUR for the
costs and expenses incurred before this Court comprising 30,996 EUR
for expert reports on the allowance and 6,600 EUR corresponding to
her lawyer's fees. The applicant underlined that the translation
costs could only be specified after the closure of the case before
the Court.
The Government contested these claims.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, the Court notes that the expert reports
did not deal with the violation of Articles 6 and 13 of the
Convention. Regard being had to the information in its possession and
the above criteria, the Court considers it reasonable to award the
sum of EUR 1,000 covering costs under all heads.
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
Declares the complaint concerning the excessive
length of the proceedings and the lack of an effective remedy in this
respect admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros) in respect of non-pecuniary damage and 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
