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YILDIZ v. GERMANY - 23279/06 [2009] ECHR 1467 (8 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1467.html
Cite as:
[2009] ECHR 1467
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FIFTH
SECTION
CASE OF YILDIZ v. GERMANY
(Application
no. 23279/06)
JUDGMENT
STRASBOURG
8 October
2009
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 Yildiz v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 23279/06) 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 Ilyas Yildiz
(“the applicant”), on 6 June 2006.
The
applicant was represented by Mr E. Eyl, a lawyer practising in
Strasbourg. The German Government (“the
Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry
of Justice.
On
30 April 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
The
applicant was born in 1963 and lives in Anzing.
A. Background to the case
On 8 August 1994 the applicant had an accident at work
– a cut of about one centimetre to his right wrist. The same
day he was treated by the company doctor, Dr B. On 10 August 1994 his
general practitioner transferred him to hospital. That day and again
on 24 August 1994 he was examined by a Dr M. On his second
examination Dr M. diagnosed that the applicant was unable to flex his
thumb. On 5 September 1994, following a further examination, he had
surgery on a muscle, the flexor pollicis longus.
B. Proceedings before the Munich Regional Court
On
28 January 1997 the applicant instituted proceedings in the Munich
Regional Court against Dr B. and Dr M., seeking an award of
compensation for pecuniary and non-pecuniary damage in the amount of
60,000 euros (EUR). He argued that if the defendants had treated him
properly, the operation would have been avoided, which in turn would
have avoided severe pain and further problems, including reactive
depression.
In
February 1997 the court scheduled a hearing for 21 April 1997.
Submissions by the parties followed and in April the case was
transferred to a single judge.
On
12 May 1997, following the hearing, the Munich Regional Court decided
to hear the applicant's general practitioner and scheduled a new
hearing for 28 July 1997. On account of the absence of the first
defendant's legal counsel, it later postponed it to 24 November 1997.
It refused a subsequent request for a further postponement.
On
18 August 1997 the applicant's legal counsel ceased taking
instructions from the applicant. On 24 October 1997 his new lawyer
addressed the court.
In
November 1997 the parties agreed on written submissions.
In
February 1998 the applicant's second lawyer also ceased taking
instructions from the applicant; subsequently, a new lawyer was
appointed and requested access to the files.
On
26 March 1998 the applicant requested the court to await the outcome
of the social court proceedings, which were also pending, and
returned the files.
On
13 April 1999 the applicant's third lawyer also ceased taking
instructions but was subsequently reappointed in May.
On
15 April 1999, upon the request of one of the defendants to continue
the proceedings, the court scheduled a hearing for 10 May 1999. At
the hearing the parties agreed that the files of the social court
proceedings should be consulted. Between June and September 1999,
having been granted access to those files, the parties submitted
further observations.
In
October 1999 the applicant asked for an expert to be commissioned. In
November 1999 he submitted documents which had until then been
missing.
In
February and April 2000 he requested the court to continue with the
proceedings. On 5 April 2000 he was informed that the judge had
fallen ill.
On
23 June 2000 the Munich Regional Court decided to obtain an expert
opinion. On 22 August 2000 the expert submitted his report.
The
court then set the parties a time-limit for their observations of
18 September 2000.
On
5 October 2000 the court decided to obtain a supplementary report. On
31 October 2000, after payment of an advance, it transferred the
files to the expert. In January 2001 it asked the expert when he
would be submitting his report.
On
20 February 2001 the applicant did not attend the examination
arranged with the expert. On 16 May 2001 the expert examined the
applicant.
On
31 May 2001 the court set the expert a time-limit of four weeks for
the submission of his report. On 27 June 2001 it set him another
deadline of two weeks. On 3 July 2001 the expert submitted the
supplementary report. The parties' submissions followed.
On
28 August 2001 the court scheduled the hearing for
29 October
2001 and also summoned the expert. It later had to be postponed to
13 November 2001 on account of the absence of one of the legal
counsel.
On
27 December 2001, following the hearing, the Munich Regional Court
rejected the applicant's claim. Relying on the expert opinion
obtained and a statement from the applicant's general practitioner,
it found that the muscle had not been cut and that no liability on
the part of the doctors could be established.
C. Proceedings before the Munich Court of Appeal
On
11 February 2002 the applicant appealed. In April 2002, following an
extension of the time-limit, he submitted the grounds of his appeal.
On
18 April 2002 the Munich Court of Appeal scheduled the hearing for 16
May 2002. A subsequent request by the applicant for a postponement
was rejected.
At
the hearing the Munich Court of Appeal heard the doctor who had
operated on the applicant.
The
parties' submissions followed. In July 2002 the applicant requested a
further expert opinion regarding a number of questions.
The
court then scheduled a hearing for 17 October 2002 and decided to
obtain an additional statement from the expert appointed at first
instance, which was submitted on 22 August 2002.
On
18 September 2002 the applicant challenged the expert on grounds of
bias. On 2 October 2002 the Munich Court of Appeal rejected this
challenge.
Subsequently,
it commissioned another expert. The parties did not object when the
expert announced that he would not submit his report before the
following summer.
In
May 2003 the applicant transferred further documents.
On 16 June
2003 the expert examined the applicant.
On
1 August 2003 the expert submitted his report. The court then
scheduled the hearing for 13 November 2003. The applicant again
requested the court to obtain another expert opinion.
On
27 November 2003, following the hearing, the Munich Court of Appeal
dismissed the applicant's appeal and refused leave to appeal on
points of law. Relying on the experts' statements, it found that no
liability of the defendants could be established.
D. Proceedings before the Federal Court of Justice and
the Federal Constitutional Court
On
29 December 2003 the applicant appealed against the refusal of leave
to appeal. On 30 April 2004, following two requests for an extension
of the time-limit set, he lodged the grounds of his appeal.
On
29 June 2004 the Federal Court of Justice dismissed the applicant's
appeal.
On
2 August 2004 the applicant lodged a constitutional complaint.
On
7 December 2005 the Federal Constitutional Court refused to accept
his constitutional complaint for examination.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings 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...”
The
Government contested that argument.
The
period to be taken into consideration began on 28 January 1997 when
the applicant lodged a claim with the Munich Regional Court.
The
proceedings ended on 7 December 2005 when the Federal Constitutional
Court refused to accept his constitutional complaint for examination.
The proceedings thus lasted for eight years, ten months and eleven
days for four levels of jurisdiction.
A. Admissibility
The
Court notes that this 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
1. The parties' submissions
The
applicant maintained that the overall duration of the proceedings was
in breach of the “reasonable time” requirement laid down
in Article 6 § 1 of the Convention.
He
submitted that the Munich Regional Court had caused delays of almost
two years (in particular when scheduling the second hearing and in
connection with the commissioning of the expert). He also submitted
that while the case had been complicated from a factual point of
view, no difficult legal questions had arisen. Moreover, he
emphasised that the case was of particular importance to him, not
only because of the large amount at stake, but also since, as a
result of the accident, he was suffering serious pain and could not
carry on his profession any more. He also pointed out that the
defendants had not opposed his request to await the outcome of the
social court proceedings and that the delays caused by the expert
were not attributable to him.
The
Government argued that this case was of a particular factual
complexity since it concerned the question of liability for medical
malpractice and necessarily involved the taking of a number of expert
opinions. They also referred to the extensive submissions of the
applicant. In their view, the case was also complicated from a legal
point of view.
Moreover,
the Government emphasised that delays of at least two and a half
years were clearly attributable to the applicant. They referred in
particular to the applicant's request to await the outcome of the
social court proceedings, the delayed submission of documents, his
failure to attend an examination, his repeated requests for an
extension of the time-limit set and the fact that, although his
submissions were always within the agreed
time-limits, they were
often close to the deadlines. The Government also pointed out that
the applicant had contributed significantly to the length of the
proceedings in that he had made extensive submissions (sixty-five
attestations, reports and expert statements alone and another
eighty-two additional documents) and in that he had repeatedly
requested further expert opinions when a report turned out not to be
in his favour. In so doing, in their view, the applicant had clearly
accepted the protracted proceedings.
As
regards the authorities' conduct, the Government conceded that as a
result of the judge's illness the Munich Regional Court had caused
delays of about seven months. In their view, however, all in all the
authorities had used the means available to them to accelerate the
case since they had scheduled the hearings promptly, rejected
requests for a postponement of a hearing, repeatedly asked the expert
for the report and its submission and set reasonable time-limits.
The
Government conceded that, in view of the high amount of compensation
claimed, the case was of importance to the applicant. However, they
pointed out that finally his claims had been rejected.
2. 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 observes at the outset that the proceedings concerned the
question of medical liability of the two doctors who had treated the
applicant after his accident at work, which had taken place three
years before the introduction of the claim. It notes that, in the
course of these proceedings, the applicant submitted numerous
attestations and reports. Moreover, three expert opinions and
additional statements had been obtained. Therefore, the Court agrees
with the Government that the case was of a rather complex nature.
As
regards the applicant's own conduct, the Court notes firstly that
before the Munich Regional Court, the applicant had already been
represented by three different lawyers. These frequent changes of
legal counsel – two of them had ceased taking instructions from
the applicant within thirteen months of the claim being introduced –
had caused delays of several months since they resulted in the
granting of access to the files on the part of the court. Moreover,
in March 1998, the applicant had expressly requested the court to
await the outcome of the social court proceedings. And it was only at
the defendant's request that the court resumed the proceedings one
year later. The applicant had caused further delays by yet more
problems with his legal counsel, his request to include the files
from the social court proceedings, the delayed submission of
documents requested by the court and his failure to attend an
examination with an expert. The applicant also caused delays in the
appeal proceedings particularly on account of his repeated requests
for an extension of the
time-limit set and also, although within
his rights, in that he challenged the expert on grounds of bias.
Finally, it should also be noted that, even at later stages of the
proceedings, the applicant repeatedly requested the court to obtain a
new expert opinion.
Turning
to the conduct of the domestic authorities, the Court observes that
the case was pending for almost five years before the Munich Regional
Court. It notes – and this has also been conceded by the
Government – that, on account of the illness of the court
judge, delays of several months are attributable to the respondent
State. Further, minor delays had been caused by two postponements of
the scheduled hearings. Nonetheless, the Court also observes that the
Munich Regional Court (and also the Court of Appeal) repeatedly set
the parties and also the experts time-limits, enquired as to the
progress of the reports and also rejected requests for a further
postponement of the scheduled hearings.
As to what was at stake for the applicant in the
dispute, the Court finds that even though a rather large amount of
money had been claimed, no particular diligence was required.
Assessing
the circumstances of the case as a whole and in view of the
complexity of the case and the considerable delays caused by the
applicant before the Munich Regional Court, the Court considers that
in the instant case the length of the proceedings did not fail to
meet the “reasonable time” requirement.
Accordingly,
there has been no violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATION
The
applicant also complained under Article 6 § 1 of the Convention
that the proceedings were unfair.
The
Court, having regard to all the material in its possession, finds
that they do not disclose any appearance of a violation of Article 6
§ 1 of the Convention. It follows that this part of the
application is manifestly
ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 8 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
