AS TO THE ADMISSIBILITY OF
by Galina MEISTER
The European Court of Human Rights (Fifth Section), sitting on 8 December 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 8 September 2008,
Having deliberated, decides as follows:
The applicant, Ms Galina Meister, is a German national who was born in 1961 and lives in Hamburg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In August 2006 the applicant applied for the advertised post of application developer (Anwendungsentwickler) with the S-GmbH & Co. KG (“S”), a limited liability company developing and trading navigation software. S decided to hire another candidate, inter alia because of the latter’s proven interest in navigation.
1. The proceedings before the labour courts
In October 2006 the applicant, relying on the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz), brought an action for damages against the company, claiming that she had been discriminated against on the grounds of her sex, age and possibly also (Russian) origin.
On 13 February 2007 the Hamburg Labour Court dismissed her action as unfounded. It pointed out that according to the General Equal Treatment Act a person claiming compensation was required to establish the existence of at least some indications of discrimination. It held that the applicant had failed to set out sufficiently that she had been discriminated against on one of the grounds enumerated in the General Equal Treatment Act. In its reasoning the court dealt with the applicant’s arguments and set out why there were neither sufficient indications nor any kind of proof of the alleged discrimination.
On 16 October 2007 the Hamburg Labour Court of Appeal confirmed the first-instance decision. It referred to the reasons given by the Labour Court and again set out the main reasons why there was no indication of discrimination under the General Equal Treatment Act. It refused to grant leave to appeal on points of law. The judgment was served on the applicant’s lawyer on 21 January 2008.
By a letter of 22 January 2008 the applicant requested the Federal Labour Court to assign her counsel and legal aid. On 25 January 2008 the Federal Labour Court gave her the file number of her legal aid request. By letters of 25 and 27 January 2008 the applicant informed the Federal Labour Court that her letter of 22 January 2008 should also be seen as a complaint against the refusal to be granted leave to appeal on points of law (Nichtzulassungsbeschwerde) and supplemented her reasoning. On 31 January 2008 the Federal Labour Court gave her the file number of her complaint about the refusal to be granted leave to appeal on points of law. By a letter of 1 February 2008 the applicant added further arguments to her requests. In the following months the applicant sent several further letters to remind the Federal Labour Court of her requests.
On 12 March 2008 the applicant lodged a constitutional complaint against the Federal Labour Court’s failure to act in the proceedings concerning her requests of January 2008. On 18 April 2008 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication, without giving any reasons.
On 14 May 2008 the Federal Labour Court informed the applicant that with regard to the Federal Constitutional Court’s decision of 18 April 2008 about her constitutional complaint “against the decision of the senate”, it “considered the matter resolved” (“betrachtet der Senat die Streitsache als erledigt”).
By a letter of 16 May 2008 the applicant again asked the Federal Labour Court to decide upon her requests and pointed out that her constitutional complaint was directed against its failure to act and not against a “decision of the senate”, as there had never been such decision.
On 19 June 2008 and 6 February 2009 the Federal Constitutional Court refused to admit for adjudication further constitutional complaints by the applicant against the Federal Labour Court’s failure to act.
By a letter of 23 December 2008 the applicant lodged a motion for bias against the judges of the Federal Labour Court involved in her proceedings. Hereupon the Federal Labour Court on 17 March 2009 again informed the applicant that her requests of January 2008 had been resolved and struck off the list, so that there was no point in deciding her motion for bias.
On 21 April 2009 the Federal Constitutional Court refused to admit for adjudication the applicant’s constitutional complaint against the Federal Labour Court’s failure to decide on her motion for bias. It held that due to a misinterpretation of the Federal Constitutional Court’s decision of 18 April 2008 the Federal Labour Court had considered the matter resolved and failed to take a decision in the proceedings. The right to effective legal protection required court proceedings to be terminated within a reasonable time. In this regard it also pointed to Article 6 of the Convention. The Federal Constitutional Court concluded that with regard to its clarification, it could be expected that the Federal Labour Court would neither continue to refuse to take a decision in the applicant’s proceedings (concerning her requests of January 2008 and the motion for bias of 23 December 2008) nor would it fail to take such decisions within reasonable time.
On 5 August 2009 the Federal Labour Court rejected the applicant’s legal aid request for her complaint against the refusal to be granted leave to appeal, holding that the complaint lacked reasonable prospects of success. On the same day the Federal Labour Court declared inadmissible the applicant’s complaint against the refusal to be granted leave to appeal because she was not represented by counsel, as statutorily required.
2. The institution of criminal proceedings
In June 2008 the applicants lodged a criminal complaint (Strafanzeige) against the Federal Labour Court judges involved in her proceedings. On 8 July 2008 the Erfurt Public Prosecutor’s Office refused to institute preliminary investigations. It held that the applicant’s allegations were unsubstantiated. There were no indications of a criminal offence in the applicant’s submissions.
The applicant appealed against this decision with the General Public Prosecutor’s Office.
B. Relevant domestic law
According to section 72a §§ 1 and 2 of the Labour Courts Act (Arbeitsgerichtsgesetz) the Labour Court of Appeal’s refusal to grant leave to appeal on points of law can be challenged by a complaint (Nichtzulassungsbeschwerde) to the Federal Labour Court. According to section 11a of the Labour Courts Act a party has the opportunity to request legal aid and the assignment of counsel.
Pursuant to section 11 § 4 of the Labour Courts Act the parties in proceedings with the Federal Labour Court and the Labour Court of Appeal have to be represented by counsel.
The applicant raised various complaints under Article 6 of the Convention about domestic labour court proceedings, in particular about the outcome, a violation of her right to be heard and that she had been denied access to court, as the Federal Labour Court had refused to decide on her requests of January 2008 in the proceedings concerning her action for damages. She claimed that as a consequence she had not received any compensation for discrimination against her. Moreover, she complained about the refusal to institute criminal proceedings against the judges of the Federal Labour Court. Finally, she complained under Article 14 of the Convention that she had not found employment because of her sex, age and origin.
Later on she added to her complaints, claiming that the Federal Labour Court had ignored the withdrawal of her complaint against the refusal to be granted leave to appeal on points of law.
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court finds that the question whether there was a breach of the right of access to court as guaranteed by Article 6 § 1 of the Convention can be left open, because, even supposing that there had been a breach, the domestic authorities have remedied that breach.
The Court reiterates that it falls first to the national authorities to redress any violation of the Convention. In this regard, the question whether an applicant can claim to be the victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, inter alia, Siliadin v. France, no. 73316/01, § 61, ECHR 2005-VII). A decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Siliadin, cited above, § 62).
In the present case, the Federal Constitutional Court, in its decision of 21 April 2009, found that the fact that the Federal Labour Court considered the matter resolved and the resulting refusal to take a decision were incompatible with the applicant’s right to effective legal protection as laid down in Article 6 of the Convention. Even if the Federal Constitutional Court, with regard to the fact that the Federal Labour Court was still able to remedy the situation, did not find a violation, it acknowledged at least in substance that there would be a violation if no decision was taken. By taking a decision on 5 August 2009 on the applicant’s requests of January 2008 the Federal Labour Court also afforded redress with regard to the potential breach of the applicant’s right of access to court.
Therefore, the applicant, in any event, can no longer claim to be a victim of a violation of her right of access to court. It follows that this part of the application must be declared inadmissible and rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen