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Cite as: [2010] ECHR 1559

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FIFTH SECTION

CASE OF GRUMANN v. GERMANY

(Application no. 43155/08)

JUDGMENT

STRASBOURG

21 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of Grumann v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a committee composed of:

Mark Villiger, President,
Isabelle Berro-Lefèvre,
Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 28 September 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 43155/08) 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, Ms Maike Grumann (“the applicant”), on 3 September 2008.

The applicant was represented by Mr G. Rixe, a lawyer practising in Bielefeld. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, Federal Ministry of Justice.

On 5 October 2009 the President of the Fifth Section decided to communicate the complaint concerning the length of the proceedings to the Government. In accordance with Protocol 14, the application was assigned to a Committee of three Judges.

The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant, an arts teacher, was born in 1946 and lives in Munich.

On 19 November 1996 she underwent elective surgery on her right eye. Subsequently, her vision deteriorated, causing her, in 2003, to become incapable of working.

A. Civil proceedings

On 24 June 1998 the applicant lodged a claim of medical malpractice against the hospital and three of its physicians with the Munich I Regional Court. Prior to the first hearing on 26 October 1998 the court ordered the applicant to file medical records and a declaration releasing her physicians from their medical confidentiality. In November 1998 the applicant withdrew her action against two of the defendants, and the Regional Court requested medical records from the physicians. On 30 December 1998 the court ordered the applicant to file additional medical records, which were partly filed in March 1999. On 20 April 1999 the applicant’s counsel informed the court that no more records existed.

On 3 December 1999, following another hearing on 20 October 1999 the Regional Court ordered an expert report from S. which he submitted on 19 April 2000. On 8 May 2000 the date of the next oral hearing was fixed for 13 September 2000. In view of the parties’ comments on the expert opinion, this hearing was cancelled on 13 July 2000, and S. was asked to supplement his report; he produced the supplement on 13 October 2000.

On 9 April and 30 August 2001, following oral hearings on 31 January and 13 August 2001, the Regional Court ordered further supplements from S. which were submitted on 18 June and on 17 October 2001. On 17 December 2001 the applicant increased her claim for pecuniary damage and was ordered to make a further advance payment of court fees.

On 29 January 2002 the Regional Court cancelled the hearing set for 6 February 2002 because payment of the further court fees could not be confirmed. On 12 June 2002 the applicant informed the court that her insurance had already paid the additional court fees in January; actual confirmation of the payment was only made on 23 August 2002. On 9 December 2002, after the expert had not replied to the court’s letters from August 2002, the Regional Court informed the parties that he could not be located.

On 23 January 2003 the applicant increased her pecuniary damage claim. On 8 April 2003 an oral hearing set for 16 April 2003 was cancelled. On 3 July 2003 the Regional Court ordered a new expert report from O. since S., who had meanwhile been traced, was not available for a hearing. On 31 July 2003 the applicant again increased her pecuniary damage claim. After comments on the claim extension by the defendants the court on 8 September commissioned O. On 7 November 2003 he informed the court that he was unable to accept the assignment but recommended his colleague, K. On 5 December 2003 the applicant objected to the appointment of K.

On 1 April 2004 O. returned the files to the court. On 20 April 2004 G. was appointed as expert. He submitted his report on 6 December 2004 after a reminder of the court dated 15 November 2004.

On 4 February 2005, after having received comments from the parties, the Regional Court ordered a supplement to the report, which G. submitted on 28 February 2005. An oral hearing scheduled for 25 May 2005 was cancelled on 15 April 2005 upon both parties’ request; a new date was set for 16 November 2005. On 21 September 2005 G., who could not come to a hearing due to health problems, submitted written answers to further questions of the applicant. On 16 November 2005 the oral hearing was held. On 31 December 2005 the applicant increased her pecuniary damage claim.

On 6 April 2006 the Regional Court informed the parties that it intended to have the applicant examined. On 14 April 2006 G. died. On 7 June 2006 the court designated L. to assess the applicant’s current medical status. In September 2006 the court was advised that one and the same expert should examine the applicant and also submit a follow-up to G’s opinion. On 12 October 2006 Sp. was appointed after the applicant had objected to the appointment of L. On 25 October 2006, at the defendants’ request, the oral hearing, which had been set for 5 February 2007, was rescheduled for 29 January 2007. On 13 November 2006 the files were forwarded to Sp.

On 23 January 2007 the court, which had not yet received the expert report, cancelled the hearing set for 29 January 2007. On 29 January 2007 Sp. submitted her report and on 19 March 2007 she was heard in an oral hearing. In April and July 2007 the Regional Court proposed a settlement which the parties did not accept. On 25 July 2007 it then handed down a partial and a full judgment on the basis of the cause of action (Teil und Grundurteil).

On 11 September 2007 the defendants appealed the judgment. On 12 October 2007 they submitted the reasoning of the appeal. On 7 December 2007 the Court of Appeal scheduled an oral hearing for 21 February 2008. On 24 January 2008 the applicant lodged a cross-appeal (Anschlussberufung). On 29 May 2008 the appeals were dismissed.

On 3 July 2008 the defendant lodged a complaint against the Court of Appeal’s refusal to grant leave to appeal. On 6 October 2008 the grounds for the complaint were lodged. On 5 January 2009 the applicant submitted a response. On 21 January 2009 the Federal Court of Justice quashed the judgment and remitted the case to the Court of Appeal.

On 23 February 2009 the files were returned to the Court of Appeal which on 25 March 2009 proposed a settlement and advised the parties that otherwise a new expert needed to be appointed. On 7 May 2009 the defendants refused the settlement. On 28 May 2009 the Court of Appeal appointed K. as the new expert. On 17 June 2009 the applicant reiterated her objection from 2003 to the appointment of K. On 25 June 2009 the Court of Appeal appointed A., who on 14 July 2009 informed the court that he was not be able to render the expert opinion. On 5 August 2009 the Court of Appeal appointed G., who on 7 September 2009 also informed the court that he was not available. On 3 November 2009 R. was appointed.

B. Criminal proceedings

On 19 September 2006 the applicant pressed criminal charges against the defendants alleging procedural fraud (Prozessbetrug). On 9 October 2006 the Public Prosecutor’s Office acknowledged receipt of the complaint. On 8 May 2009 the applicant renewed her complaint against the defendants.

II. RELEVANT DOMESTIC LAW

Section 358 a Code of Civil Procedure

“The court can issue an evidence order already before the oral hearing. The order can be implemented before the oral hearing as far as it orders:

...

4. an expert opinion.

...”

Section 409 Code of Civil Procedure

“(1) Where an expert fails to appear in court or refuses to render an expert opinion although he is obliged to do so, or if he retains the files or other documents, he shall be obliged to pay the costs arising therefrom. At the same time, an administrative fine shall be imposed. In the event of repeated disobedience, the administrative fine may be imposed a second time.

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that the length of the still pending proceedings was 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 this argument and maintained that the length of the proceedings was not excessive. They emphasised the complexity of the medical malpractice proceedings at issue, in particular the necessity of obtaining expert evidence. They pointed out the difficulties involved, namely the search for competent experts willing to prepare not only the report but also to appear at a hearing. In this context they also submitted that it was reasonable for the court not to take coercive measures against experts who ask not to be summoned to a hearing, because such measures would make it even more difficult to find experts in the future. Moreover, numerous questions of the parties made addendums to the reports necessary; the resulting delay could not be attributed to the court. The Government pointed out that it must be seen as proper conduct of the proceedings that the court only ordered the first expert opinion after the applicant had withdrawn her action against two of the defendants and all medical records were on file. They also maintained that the cancellation of a hearing because payment of additional court fees could not be confirmed could not be objected to. As to the applicant’s conduct, the Government submitted that she contributed to the length of the proceedings with her late submission of medical records at the beginning of the proceedings, her delayed payment of additional court fees, her objections to experts, her claim extensions and several requests for an extension of time limits.
While the Government conceded that the proceedings were of some importance to the applicant, they also pointed out that the surgery had not been medically indicated and that the applicant was still in a financially secure situation.

The period to be taken into consideration began on 24 June 1998 with the lodging of the action and has not yet ended. It has thus lasted so far more than twelve years at three levels of jurisdiction.

A. Admissibility

The Court notes that the application 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

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 has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. While the Court accepts that medical malpractice proceedings may well be complex, it finds that in the instant case the proceedings were not conducted with the efficiency that can be expected with a view to the “reasonable time” requirement of Article 6 of the Convention. The Court sees no reason why the Regional Court did not at the very beginning order the parties to submit all medical records and issue an evidence order already before the first oral hearing as is possible under domestic law (see Relevant domestic law above), but instead waited more than one year. The Court also observes that the whole process of obtaining expert reports and supplements to these reports could have been cut short if the expert had been summoned to the first hearing to give an oral expert report or, at least, if he had been summoned to explain his written report at the earliest possible hearing. In this context the domestic courts should verify that only experts who are available for an oral hearing are appointed and should also make use, if necessary, of coercive measures as provided for by domestic law.

As to the applicant’s conduct the Court takes note of her frequent claim extensions. However, it also observes that they dealt with the applicant’s pecuniary damage claim which the domestic courts have so far not even addressed; the Court hence does not discern any causal link between the claim extensions and the length of the proceedings. The same is true for the alleged late payment of additional court fees following a claim extension. The Court does not see any reason why an oral hearing dealing with the basis of the cause of action and not the pecuniary damage claim should be cancelled for this reason. As far as the applicant’s requests for extensions of time limits and her objections experts are concerned the Court finds that any delay arising therefrom is negligible. Finally, the Court accepts that the proceedings were rather important for the applicant who had become incapable of working due to the surgery at issue.

Having regard to the above considerations and its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of the “reasonable time” requirement of Article 6 § 1.

II. THE REMAINDER OF THE APPLICANT’S COMPLAINTS

The applicant, once more relying on Article 6 of the Convention, further complained about the way in which evidence was taken by the domestic courts, about the length of the proceedings regarding the criminal charges she brought against the defendants and that her right to have a criminal offence prosecuted was violated.

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 considers that this part of the application does not disclose any appearance of a violation of the Convention. If follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

III. 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 25,000 euros (EUR) in respect of non pecuniary damage.

The Government left the issue of non-pecuniary damage to the discretion of the Court.

The Court considers that the applicant must have sustained non pecuniary damage as a result of the excessive length of the proceedings. Ruling on an equitable basis and having regard to the nature of the Convention violations it has found as well as, in particular, to what was at stake for the applicant, it awards her EUR 10,000 under that head.

B. Costs and expenses

The applicant, submitting documentary evidence, claimed EUR 3,550 for costs and expenses incurred before the domestic courts.

Regarding costs and expenses incurred before this Court the applicant claimed EUR 2,296.99, comprising lawyer’s fees of EUR 2,213.44 and own expenses of EUR 83.59.

The Government contested the claim for costs and expenses incurred before the domestic courts, maintaining that since the German fee schedule for lawyers did not provide for any special fee with regard to advice on the length of the proceedings the costs claimed in this regard could only be based on a fees agreement which had not been submitted.

According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers that the applicant has not established that the costs and expenses claimed for the proceedings before the domestic courts were incurred in order to seek prevention or rectification of the specific violation caused by the excessive length of the proceedings. In particular, the Court finds that the evidence submitted for extra lawyers’ fees allegedly incurred specifically because of the length of proceedings is not sufficiently substantiated. The German fee schedule for lawyers does not provide for an extra fee because of the length of the proceedings; an agreement providing for a extra remuneration in this regard was not submitted. However, seeing that in length of proceedings cases the protracted examination of a case beyond a “reasonable time” involves an increase in the applicants’ costs (see, among other authorities, Sürmeli v. Germany [GC], no. 75529/01, § 148, ECHR 2006 VII), it finds it reasonable to award EUR 500 under this head. This amount also covers the EUR 360 claimed by the applicant for additional legal advice because of the length of the proceedings. The Court further considers it reasonable to award the sum of EUR 2,296.99 covering lawyer’s fees and the applicant’s own expenses for the proceedings before the Court.

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,

(i) EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage;

(ii) EUR 2,796.99 (two thousand seven hundred ninety-six euros and ninety-nine cents) in respect of costs and expenses;

(iii) any tax that may be chargeable to the applicant in respect of the above amounts;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 21 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Mark Villiger
Deputy Registrar President