AS TO THE ADMISSIBILITY OF
by Thomas EULE
European Court of Human Rights (Fifth Section), sitting on
10 March 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 6 December 2005,
Having deliberated, decides as follows:
The applicant, Mr Thomas Eule, is a German national who was born in 1943 and lives in München.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
applicant is a retired military officer who underwent
psychotherapeutic and psychoanalytical treatment from 1987 onwards.
He was discharged in 1988 on grounds of his medical condition.
The therapy was discontinued in March 1991 in view of the applicant having fallen in love with the therapist, who initially treated the applicant's feelings as “transference of affection” (Übertragungsliebe) and personally sought supervision. In October 1991 the applicant and the therapist commenced an intimate relationship that ended in May 1992.
On 5 June 1997 the applicant sued the therapist for damages of German marks 156,238.50 (DEM) (euros 79,883.48 (EUR)). He argued that the therapist had discontinued the therapy in view of the commencing of an intimate relationship and had thereby violated her duties from the contract governing the therapeutic treatment as well as her professional duty to remain sexually uninvolved with a client; because of the therapeutic malpractice he had suffered from a mental breakdown that had required further therapeutic treatment for which he had incurred the damage complained of.
On 2 April 1998 the Munich Regional Court ordered a first expert opinion. The expert witness submitted that the therapist had seriously breached her professional duties. The court held that the expert opinion was not satisfactory as it was incoherent, not fully reasoned and did not differentiate between professional, therapeutic and ethical standards.
In response to the opinion of the first expert witness, the defendant therapist submitted a private expert opinion that found no violation of therapeutic and professional standards and denied that the therapist's actions were causally linked to the damage complained of. The court noted that the private expert opinion had come to different conclusions from the first expert opinion but was not in itself fully satisfactory; the court therefore ordered another expert opinion on 17 August 1999.
The second expert witness criticised the previous expert opinions for their reliance on psychoanalytical tools and denied any wrongdoing on the part of the therapist as she had conscientiously transferred the therapeutic relationship into an intimate one between consenting adults. The court noted that the second expert witness' opinion was unsatisfactory because the parties had engaged in – among other therapeutic techniques – psychoanalysis and the expert witness had displayed an overly critical and biased assessment of psychoanalysis.
February 2001 the court ordered a third expert opinion pursuant to
Article 412(1) of the Code of Civil Procedure (see “Relevant
domestic law” below). The expert witness delivered his opinion
on 10 December 2002; at the applicant's instigation, the expert
witness submitted a clarification of his opinion on 9 April 2003. He
stated no discernable professional standards for the gentle
cancellation of a therapeutic relationship could be verified; there
were no professional standards concerning the period between the
discontinuation of a therapeutic and the beginning of an intimate
relationship between therapist and patient; the only possible link
between the intimate relationship and the damage complained of was
the applicant's realisation that he had not found what he had been
On 30 April 2003 the applicant challenged the third expert witness on grounds of bias; on 10 June 2003 the court rejected the challenge as
On 9 July 2003 the court dismissed the applicant's claim at the end of an oral hearing. It held that the therapist had not violated therapeutic and professional standards and based its decision mainly on the third expert witness's opinion, which it held to be convincing, methodically sound and precise.
November 2003 the Munich Court of Appeal informed the parties of its
intention to dismiss an appeal lodged by the applicant as ill-founded
pursuant to Article 522(2) of the Code of Civil Procedure
(see “relevant domestic law” below) on the grounds that the first expert witness' opinion had been rightly rejected by the Regional Court. The Court of Appeal noted that the therapist had acted responsibly, had not violated the therapist's duty to remain sexually uninvolved and that there were no strict professional rules concerning the minimum period between the ending of a therapeutic and the beginning of an intimate relationship between a former therapist and patient. On 11 March 2004 counsel for the applicant submitted further observations. On 15 March 2004 the Court of Appeal dismissed the applicant's appeal.
On 16 April 2004 counsel for the applicant lodged a constitutional complaint with the Federal Constitutional Court arguing that the Court of Appeal had not taken into account the applicant's further submissions of 11 March 2004 and had treated the applicant as a perpetrator rather than a victim of sexual abuse.
On 4 October 2005 the Federal Constitutional Court, relying on the relevant provisions of its Rules of Procedure, refused to accept the applicant's constitutional complaint for examination without giving further reasons (no. 1 BvR 878/04).
B. Relevant domestic law
Under Article 412(1) of the Code of Civil Procedure the court may order a new expert opinion by the same or another expert witness if it considers the expert opinion to be unsatisfactory.
Under Article 522(2) of the Code of Civil Procedure, the Court of Appeal may reject an appeal by unanimous decision if it is convinced that the appeal has no prospect of success, the legal matter is not of fundamental importance and the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by the Court of Appeal. The Court of Appeal or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and have to give the appellant the opportunity to submit observations within a set time-limit. The decision under Article 522(2) of the Code of Civil Procedure is not subject to an appeal and the Court of Appeal cannot grant leave to appeal on points of law.
The applicant's complained under Article 6 § 1 of the Convention that the domestic proceedings had been unfair. In this respect he referred to the length and fairness of the proceedings before the Regional Court, the decision of the Court of Appeal to dismiss his appeal without an oral hearing and without granting leave to appeal on points of law, and the Federal Constitutional Court's refusal to accept his constitutional complaint for examination without giving further reasons. The relevant part of his submissions reads as follows:
“The applicant considers his complaint well-founded because the German courts in handling his civil action violated general standards and the standards agreed upon in the European Convention on Human Rights.
The respective court decisions were rendered without the appropriate consideration of all the materials submitted and all the evidence produced or applied for. The judgments were based on distorted facts and arbitrarily chosen and objectionable expert opinions that could not withstand critical analysis.
The courts did not sufficiently respect the applicant's fundamental rights and his right to be heard in the proceedings and thus violated the principles and guarantees of Article 6 § 1 of the Convention. This is evidenced for example by the fact that
During six years of proceedings before the first instance court hearings were only held on certain occasions to compare the statements of facts as presented by the parties;
Motions to hear expert witnesses and witnesses were dismissed without giving reasons or were not treated at all and the parties were not summoned;
Expert opinions from expert witnesses whom the applicant had challenged either for personal bias or for bias as regards the subject matter of the proceedings were nonetheless obtained and the decisions were based on these expert opinions;
Evidence that had been submitted was rejected without a comprehensible examination and without giving reasons when deciding the matter;
The appeal was dismissed after a few days in formalistic decisions that contained discriminatory language;
The shifting of the burden of proof failed and that the motion for leave to appeal on points of law was not granted although the fundamental importance of the case had been proofed;
The constitutional complaint was not accepted for examination without giving any reasons.
The Convention's purpose is to guarantee rights that not only provide a merely theoretical protection but effectively safeguard the parties. From this it follows that the parties must be truly heard as regards their motions and the court must take these motions into account in an appropriate manner in view of the effective enforceability of the guaranteed rights.”
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
On 6 December 2005 the applicant submitted his application in which he raised his complaints in the terms cited above. The applicant further noted that
“[t]he claim was dismissed following proceedings that had lasted for six years by judgment of 9 July 2003” (internal references omitted).
However, this statement concerning the first instance proceedings was solely made with regard to the exhaustion of domestic remedies.
The applicant's submissions were ambiguous. The question arises whether the terms of his submissions comprised a complaint about the length of the civil proceedings or whether the mentioning of the length only concerned the fairness of the proceedings. The Court must therefore decide whether the applicant has validly introduced an independent complaint about the length of the proceedings.
Court reiterates that the mere invocation of Article 6 of the
Convention by the applicant is insufficient to introduce specific
complaints made under that provision (see Zervakis v. Greece
(dec.), no. 64321/01, 17 October 2002; Allan v. the
United Kingdom (dec.), no. 48539/99, 28 August 2001).
The Court observes that, although the right to a hearing within a
reasonable time is a specific aspect of the right to a fair trial,
complaints about the length of the proceedings cannot be considered
mere substantiations of complaints about unfair proceedings but
rather constitute independent complaints. Accordingly, a complaint
about unfair proceedings does not automatically include a complaint
about their length
(see Adam and Others v. Germany (dec.), no. 290/03, 1 September 2005). The Court further has held that a citation in full of the relevant parts of Article 6 § 1 of the Convention may exceptionally qualify as an admissible length of proceedings complaint (see Houfová v. the Czech Republic (no. 1), no. 58177/00, § 31, 15 June 2004).
The Court notes at the outset that the applicant did not cite Article 6 § 1 of the Convention in full. The Court further notes that the applicant complained about violations of his fair trial rights and mentioned the length of the proceedings before the Regional Court as an example of the unfairness of the proceedings as a whole; other examples related to the taking of evidence, the appeal proceedings and the proceedings before the Federal Constitutional Court.
The Court finds that these submissions do not qualify as a succinct statement of an alleged violation of the applicant's right to a hearing within a reasonable time, as required by Rule 47 §1(e) of the Rules of Court, and that the Court can therefore not examine the length of the proceedings before the domestic courts.
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do 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 Rait Maruste