AS TO THE ADMISSIBILITY OF
by Klaus Dieter PETERKE and Kurt LEMBCKE
European Court of Human Rights (Fifth Section), sitting on
3 February 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 30 January 2003,
Having regard to the partial decision of 4 December 2007 to adjourn the examination of the complaint about the length of proceedings in respect of the applicant Peterke and to declare the remainder of the application inadmissible,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant Peterke,
Having deliberated, decides as follows:
The applicant, Mr Klaus Dieter Peterke, is a German national who was born in 1935 and lives in Potsdam.
He is represented before the Court by Mr K. H. Christoph, a lawyer practising in Berlin. The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, an engineer by profession, contributed to the compulsory general pension scheme and the optional supplementary pension scheme of the former German Democratic Republic.
On 23 August 1995 the Federal Insurance Fund for Salaried Employees (Bundesversicherungsanstalt für Angestellte – hereinafter referred to as “Insurance Fund”) issued a declaratory decision on the applicant’s contribution periods (Versicherungsverlauf) and the basis for the calculation of his pension.
On 13 March 1996 the Insurance Fund rejected the applicant’s objection.
On 15 April 1996 the applicant lodged a claim with the Berlin Social Court.
In decisions of 22 April and 17 July 1996 the Insurance Fund granted the applicant a pension, the amount of which was based on the impugned decision of 23 August 1995.
On 13 October 1997 the Berlin Social Court rejected the applicant’s claim against the Insurance Fund’s decisions as unfounded.
On 14 February 1998 the applicant lodged an appeal with the Berlin Social Court of Appeal arguing that he was entitled to a higher pension.
On 19 March 1998 the applicant moreover lodged a constitutional complaint with the Federal Constitutional Court making the same complaints.
On 24 March 1998 the applicant requested the Berlin Social Court of Appeal to stay the proceedings in view of the constitutional complaint, or alternatively to suspend them.
On 29 April 1998 the applicant repeated his motion for a suspension of the proceedings. He also announced that he would file further observations if it was rejected.
On 12 June 1998 the Berlin Social Court of Appeal rejected this motion.
In a letter dated 4 January 1999 the applicant again pointed out that he requested the proceedings to be stayed or suspended. He also announced that further submissions would be made on decisions of principle rendered by the Federal Constitutional Court in the meantime.
In a letter of 19 October 2000 the applicant again referred to his previous motions aimed at having the proceedings stayed or suspended.
In January 2001 the Berlin Social Court of Appeal requested the applicant to give further particulars of his claims and to indicate whether, as announced in the letter of 29 April 1998, further submissions would be made.
In March and April 2001 it reminded the applicant to submit his further observations.
In May 2001 and February 2002 the applicant filed further submissions and also requested the Berlin Social Court of Appeal to seek a preliminary ruling from the Federal Constitutional Court.
On 6 August 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.
On 30 January 2003 the applicant lodged the present application. In his first letter to the Court he complained about the decision of the Federal Constitutional Court and the unfairness of the proceedings.
In May 2003 and again in October 2003 the Berlin Social Court of Appeal requested the applicant to state his position regarding a friendly settlement.
On 21 January 2004 the applicant reiterated his request to stay the proceedings in view of the application he had lodged with the Court.
On 30 December 2004 the Berlin Social Court of Appeal scheduled the hearing for 26 January 2005.
The applicant then twice filed a motion for the hearing to be cancelled and the proceedings stayed on account of the fact that his complaint was still pending before the Court. He submitted that failure to do so would amount to an “abuse of rights” with regard to him. The Berlin Social Court of Appeal rejected both requests (decisions of 19 and 24 January 2005).
On 26 January 2005 it dismissed the applicant’s appeal. It also refused leave to appeal on points of law.
On 16 January 2006 the Federal Social Court rejected as inadmissible the applicant’s appeal against the refusal to grant leave to appeal.
The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings before the social courts concerning his pension claims.
The applicant complained about the length of the proceedings under Article 6 § 1 of the Convention, which, in so far as relevant, 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 ...”
their submissions the Government stated that the applicant had not
raised his complaint about the length of the proceedings within the
six-month period laid down in Article 35 § 1 of the Convention. In their view the relevant date on which the proceedings ended was 6 August 2002, when the Federal Constitutional Court gave its decision.
In his observations in reply, the applicant contested that argument.
The Court finds that it does not need to resolve that matter in the present case since it considers that the application is inadmissible in any event for the following reasons.
Government moreover submitted that in view of the particular
circumstances of the case, the length of the proceedings, in
particular before the Berlin Social Court of Appeal, had not been
excessive. In this respect they argued that the applicant had
substantially delayed the proceedings and that he was not in fact
interested in a speedy decision of the Berlin Social Court of Appeal,
but, on the contrary, had attempted to avoid a final decision being
rendered by that court. According to them, the applicant’s
present complaint about the length of the proceedings was therefore
in breach of the principle nemini licet venire contra
factum proprium (no one may set himself in contradiction to his
own previous conduct).
The Government moreover relied on the particular factual and legal complexity of the case and the exceptional circumstances of German reunification.
The applicant, in his reply, maintained that in spite of the complexity of the subject-matter, the overall length of the proceedings had failed to meet the “reasonable time” requirement. He also relied on the significance of the matter for him.
The Court notes, first, that the overall length of the proceedings amounted to ten years and four months – the proceedings started in September 1995 when the applicant lodged his objection and ended with the decision of the Federal Social Court of 16 January 2006. The Court finds that the only period which might give rise to an issue under Article 6 § 1 of the Convention on account of the length of the proceedings is the period during which the proceedings were pending before the Berlin Social Court of Appeal. The proceedings before that court started in February 1998 when the applicant lodged his appeal and ended in January 2005 when it dismissed the appeal. The proceedings before the Berlin Social Court of Appeal thus lasted almost seven years.
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
Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
Only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see, among other authorities, Ciricosta and Viola v. Italy, 4 December 1995, § 28, Series A no. 337 A).
In the present case, the Court finds that neither the complexity of the case – it notes that both parties agreed that the proceedings had been of some complexity – nor the significance of the case for the applicant – given that the proceedings related to the applicant’s pension rights they were without doubt of some significance for him – are the decisive factors.
However, what is decisive in the present case is the conduct of the applicant – a conduct which even raises doubts as to whether the applicant can in fact claim to be a victim on account of the length of the proceedings.
this respect it has to be noted first that the applicant, already in
March 1998, that is to say only one month after his appeal to the Berlin Social Court of Appeal, lodged a constitutional complaint with the Federal Constitutional Court in order to have the substantive provisions underlying the calculation of his pension reviewed by that court. On account of this constitutional complaint and apparently in order to avoid an unfavourable decision of the Berlin Social Court of Appeal, the applicant then, in
March 1998, requested the Berlin Social Court of Appeal to stay or, alternatively, to suspend the proceedings. He repeated this request in
April 1998, January 1999 and October 2000 – always again referring to the constitutional complaint raised. Accordingly, the applicant expressly did not wish a decision of the Berlin Social Court of Appeal at that time.
Moreover, although announced in 1998 and despite the requests and reminders of the Social Court of Appeal in 2001 for him to give further particulars of his claims and make the respective submissions, the applicant only did so in May 2001 and February 2002. Neither did he react to the Social Court of Appeal’s request in May and October 2003 to state his position regarding a friendly settlement. In addition, in January 2004, following the rejection of his constitutional complaint and the lodging of the present application, the applicant again requested the Berlin Social Court of Appeal to stay the proceedings. And finally, just after the Berlin Social Court of Appeal scheduled the hearing, he filed two requests to cancel the hearing arguing that not to await the decision of the European Court of Human Rights would amount to an “abuse of rights” with regard to him.
Under these circumstances, the Berlin Social Court of Appeal did not bear any significant responsibility for the length of the proceedings. Consequently, neither the length of the proceedings before it nor the overall length of the proceedings exceeded a reasonable time.
It follows that the complaint under Article 6 § 1 is manifestly ill-founded and should be rejected according to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares inadmissible the remainder of the application.
Claudia Westerdiek Peer Lorenzen