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HERBST v. GERMANY - 20027/02 [2007] ECHR 20 (11 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/20.html
Cite as:
[2007] ECHR 20
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THIRD
SECTION
CASE OF HERBST v. GERMANY
(Application
no. 20027/02)
JUDGMENT
STRASBOURG
11
January 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 Herbst v. Germany,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr V.
Zagrebelsky,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
Mrs B.
Mayen, ad hoc judge,
and Mr V. Berger, Section
Registrar,
Having
deliberated in private on 7 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 20027/02) 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, Mr Heinrich
Herbst
(“the applicant”), on 14 May 2002.
The
German Government (“the Government”) were represented by
their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of
the Federal Ministry of Justice.
On
26 January 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
The
applicant was born in 1944 and lives in Neckargemünd in Germany.
From
1972 to 1979 the applicant studied law at the University of
Heidelberg.
From
April to May 1979 he wrote a paper (sechs-Wochen-Hausarbeit)
on public building law, which formed part of the first state
examination.
In
November 1979 the applicant wrote three further examination papers.
On
6 December 1979 the Lower Saxony Examination Office
(Justizprüfungsamt) informed the applicant that his paper
on public building law had been given the mark “unsatisfactory”
(mangelhaft, 1 point).
On
31 January 1980 that same office informed the applicant that his
other public law paper had been marked “insufficient”
(ungenügend, 0 points).
As
a reaction to these poor grades - which could cause failure in the
examinations - the applicant developed a severe depression which
prevented him from further pursuing the examination proceedings.
1. The proceedings before the administrative courts
On
25 April 1980 the applicant lodged a motion with the Hanover
Administrative Court (Verwaltungsgericht) with the aim of
obtaining a
re-evaluation of the two examination papers.
On
27 February 1986 the Hanover Administrative Court rejected the motion
as being inadmissible.
The
applicant's appeal to the Lüneburg Administrative Court of
Appeal (Oberverwaltungsgericht) remained unsuccessful.
On
9 February 1987 the Federal Administrative Court refused to grant the
applicant leave to appeal on points of law.
On
2 March 1988 the Federal Constitutional Court refused to accept the
applicant's constitutional complaint for adjudication.
2. The compensation proceedings before the civil courts
(a) The first instance and the legal aid
proceedings
On 30 November 1982 the applicant lodged a
compensation claim against the State of Lower Saxony with the Hanover
Regional Court (Landgericht).
On
5 January 1983 the Regional Court, upon the applicant's request and
with the defendant's consent, decided to suspend proceedings pending
the proceedings before the administrative courts.
On
14 December 1987 the Regional Court decided not to schedule a hearing
before the Federal Constitutional Court had given its decision on the
applicant's complaint against the administrative courts' judgments.
On
20 September 1988 the applicant informed the Regional Court that he
had lodged an application against the Federal Constitutional Court's
decision with the European Commission for Human Rights and requested
that the proceedings remain suspended.
On
21 December 1988 the Regional Court refused to further suspend the
proceedings.
On
8 March 1989 the Celle Court of Appeal rejected the applicant's
complaint against that decision.
On
17 March 1989 the applicant, once again, requested to suspend the
proceedings.
By
letter to the Regional Court of 7 February 1990 the applicant
requested that the proceedings should be continued. Referring to
expert opinions submitted by fifteen legal scholars, he claimed that
the evaluations of his two examination papers were incorrect.
Alleging that the poor grades had caused his psychological illness
and had thus prevented him from completing his studies and from
pursuing a university career, he claimed 463,300 Deutschmarks (DEM)
as damages for lost income, a monthly pension and further
compensation for immaterial damage suffered by him.
On
8 June 1990 the Regional Court refused to grant the applicant legal
aid.
On
19 March 1991 the Celle Court of Appeal rejected the applicant's
complaint.
On
16 July 1991 the Federal Constitutional Court
(Bundesverfassungsgericht), on the applicant's complaint,
quashed this decision and remitted the case to the Court of Appeal.
On
25 May 1992 the Celle Court of Appeal partially granted the applicant
legal aid and rejected the applicant's further request.
On
10 September 1992 the applicant filed a constitutional complaint
against the Celle Court of Appeal's decision.
On
2 May 1994 the applicant requested the Hanover Regional Court to
continue the proceedings. He further informed the Regional Court that
his counsel had relinquished her mandate.
On
17 January 1995 the Regional Court, by way of legal aid, appointed
new counsel for the applicant.
On
27 January 1995 the Regional Court scheduled a hearing for 18 May
1995, which was postponed twice, once to allow the applicant further
written submissions and once because the applicant had lodged a
motion for bias against the presiding judge of the Regional Court.
On
8 February 1995 the Federal Constitutional Court refused to accept
the applicant's constitutional complaint for adjudication.
By
judgment of 11 April 1996, following an oral hearing held on
29 February 1996, the Hanover Regional Court rejected the
applicant's claim.
(b) The proceedings relating to the
partial judgment of the Celle Court of Appeal of 29 August 2000
On
10 July 1996 the applicant lodged an appeal against the judgment of
the Hanover Regional Court.
On
22 July 1997 the Celle Court of Appeal (Oberlandesgericht)
ordered an expert opinion to be prepared as to whether the evaluation
of the two examination papers caused the applicant to fall ill and
prevented him from taking part in the scheduled oral examinations.
On
15 June 1998 the expert submitted his written opinion.
On
6 October 1998 the applicant submitted extensive comments on the
expert opinion and requested that the expert be heard by the court.
On
29 October 1998 the applicant requested that the expert should submit
his comments in written form.
On
10 December 1999 the Court of Appeal scheduled a hearing for 28 June
2000. On 23 February 2000 that same court requested the expert to
submit his comments on the parties' submissions in written form.
On
23 May 2000 the expert submitted his written comments.
On
20 June 2000 the applicant filed an objection for bias against the
expert, which was rejected on 28 June 2000.
On
28 June 2000 the Court of Appeal heard the medical expert.
At the
end of the hearing, the applicant's counsel repeated a former request
that two doctors, who had examined respectively treated the applicant
during his illness, should be heard as witnesses.
By
partial judgment (Teilurteil) of 29 August 2000 the Court of
Appeal rejected the applicant's claim in so far as it concerned
damages for the time after 31 May 1980. It found that the applicant
had failed to prove that any illness after the end of July 1981 had
been caused by the alleged incorrect evaluation of his examination
papers. In this respect, the court followed the expert's opinion that
any illness which had been caused by the evaluation had subsided
after a maximum period of 1.5 years and that any following illness
was solely caused by the structure of the applicant's personality.
According to the Court of Appeal, the expert's reasoning duly took
into account the medical statements submitted by the applicant.
Accordingly, that Court did not find it necessary to hear witnesses
on the applicant's state of health.
On
29 September 2000 the applicant lodged a request to be granted leave
to appeal on points of law.
On
20 September 2001 the Federal Court of Justice (Bundesgerichtshof)
refused to grant the applicant leave to appeal.
On
19 November 2001 the Federal Constitutional Court refused to accept
the applicant's constitutional complaint for adjudication.
(c) The proceedings relating to the final
judgment of 18 September 2001
On
29 August 2000 the Celle Court of Appeal decided to hear expert
opinion on the allegedly incorrect evaluation of the examination
papers.
In
April 2001 the expert submitted his report.
On
29 August 2001 the Court of Appeal held a hearing and heard the
expert.
On 18 September 2001 the Court of Appeal, by final
judgment (Schlussurteil), found that the evaluation of the two
examination papers had been indeed incorrectly low and that the
examiners had acted in breach of their official duties. Had the
examination papers been correctly evaluated, the applicant would have
very probably passed the examination and would have found employment
as a trainee lawyer. Accordingly, it granted the applicant DEM
1,500.00 as damages for lost income in the month of May 1980 and
further DEM 10,000.00 for non-pecuniary damages.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
Article
6 § 1 of the Convention, as far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
A. Complaint about the length of proceedings
The applicant complained that the length of the
proceedings from the lodging of his claim with the Administrative
Court on 25 April 1980 until the passing of the final judgment of the
Celle Court of Appeal on 18 September 2001 had been incompatible
with the “reasonable time” requirement, laid down in
Article 6 § 1 of the Convention.
The
Government contested that argument.
As
regards the proceedings before the administrative courts, the Court
reiterates that Article 6 § 1 is not applicable to proceedings
which concern in essence the evaluation of knowledge and experience
in school or university examinations (see, mutatis mutandis,
Van Marle and Others v. the Netherlands, judgment of 26 June
1986, Series A no. 101, § 36; San Juan v. France
(dec.), no. 43956/98 , 28 February 2002; and Nowicky v.
Austria, no. 34983/02, § 34, 24 February 2005). The
same principle applies to judicial state examinations, which are,
furthermore, closely related to the hard core of public-authority
prerogatives (see, mutatis mutandis, Ferrazzini v. Italy
[GC], no. 44759/98, § 29, ECHR 2001 VII). The Court
notes that the proceedings before the administrative courts
essentially concerned the evaluation of the applicant's examination
papers. It follows that Article 6 § 1 is not
applicable to the proceedings before the administrative courts and
that the complaint about the length of these proceedings has to be
declared inadmissible pursuant Article 35 §§ 3 and 4 as
being incompatible ratione materiae with the provisions of the
Convention.
With regard to the compensation proceedings before
civil courts, the Court recalls that the
right to compensation against the State has to be regarded as being
of a civil character even if the prerequisites concern public law
issues (see Georgiadis v. Greece,
judgment of 29 May 1997, Reports of Judgments and Decisions
1997 III, p. 959, § 35; Werner v. Austria, judgment
of 24 November 1997, Reports of Judgments and Decisions
1997 VII, p. 2508, § 38). Accordingly, the
applicability of Article 6 is not excluded by the fact that the
compensation claims were based on the evaluation of examination
papers.
The
period to be taken into consideration thus began on 30 November
1982, when the applicant lodged his compensation claim with the
Hanover Regional Court. The period in question ended on 18 September
2001 when the Celle Court of Appeal delivered its final judgment. It
thus lasted over 18 years and 9 months for four levels of
jurisdiction, including one remittal.
1. Admissibility
(a) The parties' submissions
(i) The Government
The
Government contended that the applicant did not exhaust domestic
remedies as required by Article 35 § 1 of the Convention, as he
had failed to raise his complaint about the excessive length of the
proceedings before the Federal Constitutional Court. According to the
Government, the constitutional complaint had to be regarded as an
effective remedy within the meaning of Article 13 of the Convention.
As to the means by which the Federal Constitutional Court was able to
influence the length of pending proceedings, the Government
maintained that the mere fact that notice of a constitutional
complaint satisfying the admissibility criteria was given to the
Federal Government or the government of the Land in which the
court in question was situated had the effect of speeding up the
proceedings. The same applied for a decision establishing a violation
of the Basic Law. Furthermore, the fact that the Federal
Constitutional Court's decisions were often published and discussed
in the legal press exerted a preventive effect.
The
Government further alleged that the constitutional complaint afforded
adequate redress for breaches which had already occurred. In this
respect, the Government pointed out that, according to the case-law
of the Federal Constitutional Court, the excessive length of criminal
proceedings had to be taken into account when assessing the sentence.
The Government further observed that the Court, in its
previous case-law (Klein v. Germany, no. 33379/96, 27 July
2000; Niederböster v. Germany, no. 39547/98, ECHR
2003 IV (extracts); Uhl v. Germany, no. 64387/01, 10
February 2005; and Wimmer v. Germany, no. 60534/00,
24 February 2005), had sometimes held that the finding of
a violation of Article 6 § 1 of the Convention constituted in
itself sufficient just satisfaction for the non-pecuniary damage
sustained by the applicant. According to the Government, the same
principle should apply to the domestic proceedings. Accordingly, a
decision of the Federal Constitutional Court establishing a violation
could be regarded as adequate redress.
Lastly,
the Government argued that it was possible to obtain damages for the
excessive length of proceedings by means of an action to establish
the State's liability (Amtshaftungsklage). In this respect,
they cited a judgment delivered by the Munich Regional Court on 12
January 2005 (no. 9 O 17286/03), in which the claimant had been
refunded the legal costs necessarily incurred in lodging a complaint
about the excessive length of proceedings before an administrative
court of appeal.
(ii) The applicant
The
applicant contested these submissions. He maintained that he had
raised the issue of the excessive length of the proceedings both
expressly and in substance before the Federal Constitutional Court.
In any event, the applicant considered that the Constitutional Court
should have examined the length of the proceedings on its own motion.
Furthermore, the constitutional complaint could not be regarded as an
effective remedy, as the Federal Constitutional Court was not in a
position to grant just satisfaction as provided by Article 41 of the
Convention. The applicant maintained that the mere finding of a
violation would not have constituted sufficient just satisfaction for
the damages he sustained.
(b) The Court's assessment
62. The
Court recalls 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).
With
regard to the effectiveness of the constitutional complaint, the
Court recalls its recent finding in the Sürmeli case
(Sürmeli v. Germany [GC], no. 75529/01, §§
105-108, ECHR 2006 ...), in which the Government had not
established that the constitutional complaint could be regarded as an
effective remedy to expedite proceedings which were still pending
before the civil courts. The Court notes that the Government have not
adduced any relevant reasons which could induce the Court to depart
from this finding.
It
remains to be determined whether, under domestic law, there exists an
effective remedy for an alleged violation of the right to have a case
heard within a “reasonable time” in cases were the
proceedings in question have already ended at domestic level.
According to the Court's consistent case-law, a remedy can be
regarded as “effective” in the sense either of preventing
the alleged violation or its continuation, or of providing adequate
redress for any violation that has already occurred (see, among other
authorities, Kudła v. Poland [GC], no. 30210/96, § 158,
ECHR 2000 XI; and Lukenda v. Slovenia, no. 23032/02,
§ 67, 6 October 2005). Following the termination of the
domestic proceedings, only the second option remains. In their
submission in the present case, the Government alleged that the
constitutional complaint and the action to establish the State's
liability were sufficient to provide such adequate redress.
Turning
to the first remedy, the Court notes that the Federal Constitutional
Court is not in a position to award any damages for a breach of the
“reasonable time” requirement. This means that the
Constitutional Court cannot provide any redress for pecuniary damages
incurred by the excessive length of civil proceedings.
As
regards non-pecuniary damage, the Court, in its consistent case-law,
assumes that there is a strong but rebuttable presumption that
excessively long proceedings will occasion such damage. It also
accepts that, in some cases, the length of the proceedings may result
in only minimal non-pecuniary damage or in no non-pecuniary damage at
all
(see Scordino (no.1), cited above, § 204; and the
cases cited by the Government in paragraph 56 above). However, in
these cases the domestic courts will then have to justify their
decision not to award non-pecuniary damages by giving sufficient
reasons (see Scordino (no.1), cited above,
§ 204). As
the Federal Constitutional Court is not competent to award any
damages, it follows that that court is not in a position to give such
a reasoned decision. It follows that the constitutional complaint
cannot be regarded as an effective remedy for breaches of the
“reasonable time” requirement which have already
occurred. Accordingly, the Court does not have to examine whether the
applicant did sufficiently raise the issue of the excessive length of
the proceedings in his constitutional complaint, as he was not
required to raise before that court the length of the proceedings in
his case.
As
regards the remedy of action to establish the State's liability, the
Court recalls its finding in the Sürmeli judgment
according to which such action could not be regarded as a remedy
capable of affording adequate redress for the length of the
proceedings (see Sürmeli, cited above,
§§
113-114). In this judgment, the Court considered that the judgment of
the Munich Regional Court cited by the Government did not demonstrate
that the action for damages was a remedy capable of affording
adequate redress for the length of the proceedings (see Sürmeli,
cited above, § 113).
The Court further notes that the
Government have not adduced any fresh reasons which could justify
departing from this finding.
Accordingly,
the Court is not satisfied that the aforementioned remedies can
amount to an effective legal remedy in the circumstances of the
instant case. The applicant has therefore to be regarded as having
exhausted domestic remedies within the meaning of Article 35 § 1
of the Convention.
The
Court further notes that the applicant's complaint about the length
of the civil proceedings is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
(a) The parties' submissions
(i) The Government
The
Government maintained that the length of the proceedings was mainly
imputable to the applicant's own conduct. They alleged that the
applicant's request to suspend the proceedings before the Hanover
Regional Court caused a delay from 5 January 1983 until 9 February
1990.
They further pointed out that the applicant had originally
requested that the proceedings should even remain suspended until the
European Commission for Human Rights had given its decision, but that
the Regional Court had rejected this request.
The
Government further claimed that the proceedings raised a considerable
number of complex issues which necessitated the taking of expert
opinion. As to what was at stake for the applicant, the Government
observed that the final judgment given by the Celle Court of Appeal
on 18 September 2001 in substance merely concerned the
applicant's claims for damages for lost income for the period of not
more than 1.5 years and his claims for non-pecuniary damages, which
that court assessed to DEM 10,000. The Government finally
alleged that the breach of duty did not cause a considerable break in
the applicant's professional career, as he did not further pursue his
judicial studies even after the effects caused by the breach of duty
had ceased to exist by mid-1981, as established by the partial
judgment of 29 August 2000.
(ii) The applicant
The
applicant contested these submissions. According to the applicant,
the delay caused by the suspension of the proceedings before the
Regional Court was imputable to the domestic authorities, as the
administrative courts had delayed their proceedings by ten years.
This could not have been foreseen by the applicant. Following the
termination of the administrative courts' proceedings, the Hanover
Regional Court had further delayed the proceedings by seven years
without taking the necessary evidence. The applicant further alleged
that the Celle Court of Appeal had failed to raise the evidence in an
adequate and efficient way.
According
to the applicant, the case had not been of a particularly complex
nature, as it had been obvious that the examination papers had been
marked arbitrarily low. In this respect, he pointed out that, in the
beginning of 1990, he had submitted fifteen expert opinions by
renowned legal scholars who all came to the same conclusion.
As
to what was at stake for the applicant, he alleged that the main
issue of the proceedings was to establish that his examination papers
had been marked too low. He maintained that the incorrect assessment
of his grades severely and continuously damaged his health,
endangered his life and hindered his professional career. Had the
domestic courts given their decisions in due time, he could have
pursued his promising career as a university teacher. By the time the
Celle Regional Court had given its final judgment in 2001, he had
almost reached retirement age. It followed that his case had been of
an extremely urgent nature.
(b) The Court's assessment
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court considers that the case involved points of fact and law of some
complexity, which necessitated the taking of expert opinions.
With
regard to the applicant's conduct, the Court notes that the
applicant, in January 1983, requested that the proceedings before the
Hanover Regional Court be suspended until the termination of the
proceedings pending before the Administrative Court, which he
considered prejudicial. He later requested the proceedings to remain
suspended and did not request proceedings to be pursued until
February 1990. The Court finds that the suspension contributed to a
considerable degree to the overall length of the proceedings. It
considers, however, that this delay cannot be exclusively held
imputable to the applicant's conduct, as both the defendant party and
the Regional Court consented to the suspension of the proceedings.
As
to the conduct of the domestic courts, 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 proportionate
having regard to the special circumstances of the case (see König
v. Germany, judgment of 28 June 1978, Series A no. 27,
§ 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 v. Germany, no. 38033/02, § 44,
13 July 2006). In the present case, the Hanover Regional Court
abstained from deciding on the applicant's case in view of the
proceedings pending before the administrative courts and the Federal
Constitutional Court. The Court notes, firstly, that the proceedings
before the Hanover Administrative Court lasted more than three years
following the suspension of the civil proceedings. The final decision
of the Federal Constitutional Court was given more than two years
later. The Court accepts that the applicant requested that the
proceedings remain suspended and did not lodge a request to pursue
the proceedings until 7 February 1990. However, according to the
Court's settled case-law, even in legal systems applying the
principle that the procedural initiative lies with the parties
(Parteimaxime), as the German Code of Civil Procedure does,
the parties' attitude does not dispense the courts from ensuring the
expeditious trial required by Article 6 § 1 (see, among many
other authorities, Sürmeli, cited above, § 129).
Even assuming that the length of the suspension of the proceedings
for more than five years could still be regarded as justified in the
circumstances of the case, the Court notes that the Regional Court,
having refused to further suspend the proceedings on 21 December
1988, did not continue the proceedings until June 1990, although the
Celle Court of Appeal had already rejected the applicant's complaint
against the decision of 21 December 1988 on 8 March 1989.
The
Court further notes that the domestic courts did not order the
hearing of expert opinion until July 1997, that is, some seven years
after the Regional Court had continued the proceedings following
their suspension. Even taking into account that the applicant, during
this time, had recourse twice to the Federal Constitutional Court
with regard to legal aid issues, the Court does not find this delay
to be sufficiently justified, having particular regard to the overall
length of the proceedings, which would have necessitated particular
expeditiousness on behalf of the domestic courts.
As
to what was at stake for the applicant, the Court notes that the
civil proceedings concerned the applicant's compensation claims for
pecuniary and non-pecuniary damages suffered through the incorrect
evaluation of his examination papers. With respect to pecuniary
damages, the applicant originally claimed compensation for lost
income during his whole professional life. Only by partial judgment
of 29 August 2000, which was confirmed by the Federal Constitutional
Court on 19 November 2001, the scope of the subject matter was
limited to damages suffered before 31 May 1980. It follows that
the applicant's material interest in the outcome of the proceedings
was considerable. Furthermore, the Court notes that the applicant,
who has indisputably suffered psychologically from the marking of his
examination papers, estimated that those evaluations hindered his
professional career. Although the marking of the examination papers
itself is not subject of the proceedings before the Court, it
nevertheless illustrates the importance of the outcome of the lawsuit
for the applicant (see paragraphs 54 and 55 above). Even though the
applicant's case did not belong to a category that by its nature
calls for special expedition (such as custody of children (see
Niederböster v. Germany, no. 39547/98, §
33, ECHR 2003-IV), civil status and capacity (see Mikulić
v. Croatia, no. 53176/99, § 44, ECHR 2002-I) or labour
disputes (see Frydlender, cited above, § 45), the Court
accepts that the applicant had a considerable interest in the swift
termination of the civil proceedings.
The
Court accordingly concludes that, notwithstanding the circumstances
relied on by the Government, the length of the proceedings exceeded a
reasonable time for the purposes of Article 6 § 1. There has
accordingly been a breach of that provision.
B. Complaint about unfair proceedings
The applicant further complained under Article 6 §
1 about unfair civil proceedings. He claimed that the Celle Court of
Appeal, in its partial judgment of 29 August 2000, exclusively
followed the – allegedly incorrect – view of the medical
expert, without duly taking into account the medical statements
submitted by the applicant and without either hearing the doctors who
had examined him during his illness or hearing further expert
opinion. He further complained that the medical expert had not
sufficiently examined him, as he had only examined him for about an
hour in 1998.
The
Court reiterates that the assessment of the facts and the taking of
evidence and its evaluation is a matter which necessarily comes
within the appreciation of the national courts and cannot be reviewed
by the Court unless there is an indication that the judges have drawn
grossly unfair or arbitrary conclusions from the facts before them
(see, mutatis mutandis, Tamminen v. Finland, no.
40847/98, § 38, 15 June 2004; García Ruiz v. Spain
[GC], no. 30544/96, § 28, ECHR 1999 I). Having regard
to the content of the case-file, the Court does not find that the
decisions taken by the domestic authorities can be regarded as
arbitrary.
It
follows that this complaint is manifestly ill-founded and must be
rejected under Article 35 §§ 1 and 4 of the Convention.
II. 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 1,250,000 euros (EUR) for loss of earnings and
pension claims for the period of time between 1990 and 2025.
He
further claimed DEM 436,000 (EUR 222,923) for loss of earnings
between 1980 and 1990. He alleged that, had the domestic authorities
established the incorrect assessment of his examination papers within
due time, he would have passed his state examinations. Referring to
the good results he had obtained during his university studies and to
the fact that two professors had offered him the possibility to write
his thesis, the applicant submitted that he would have pursued a
successful university career and reached at least the post of an
assistant lecturer with a yearly income of some EUR 50,000. The
applicant further alleged that the partial judgment of 29 August 2000
would have had a more favourable outcome if the domestic courts had
established the incorrect evaluation in due time.
In
respect of non-pecuniary damage, the applicant sought EUR 100,000
for the excessive length of the proceedings, which he claimed had
destroyed both his private life and his professional career.
87. The
Government contested these claims. They argued that the applicant's
claims were contrary to the purpose of Article 41. In their
submission, there was no causal link between the alleged violations
of Article 6 § 1 and any of the pecuniary damage alleged by the
applicant, who was in fact seeking to be treated as though the
domestic courts had found in his favour and had allowed his claims
for compensation in full.
As regards non-pecuniary damage, the Government
submitted that the amount claimed by the applicant was excessive and
that the finding of a violation of Article 6 § 1 would
constitute in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant.
As regards the applicant's claim for pecuniary
damages, the Court reiterates that it cannot speculate as to what the
outcome of the proceedings would have been had they satisfied the
requirements of Article 6 § 1 as to their length (see, among
many other authorities, Sürmeli, cited above, § 144).
The Court further finds that it is not in a position to speculate as
to how the applicant's professional life would have developed if the
domestic courts had processed his compensation claims in due time.
Accordingly,
it considers that no award can be made to the
applicant under this head.
With
regard to non-pecuniary damage, the Court considers that the finding
of a violation would not constitute sufficient just satisfaction for
the damage sustained by the applicant. However, it considers that the
sum claimed is excessive. Making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court awards
the applicant EUR 10,000 under this head.
B. Costs and expenses
The
applicant did not submit a claim for cost and expenses. Accordingly,
the Court considers that there is no call to award him any sum under
this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the length of
the proceedings admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
6 § 1 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 10,000 (ten thousand euros) in respect of
non-pecuniary damage, 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 11 January 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan
M. Zupančič
Registrar President
