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Cite as: [2010] ECHR 423

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FIFTH SECTION

CASE OF RITTER-COULAIS v. GERMANY

(Application no. 32338/07)

JUDGMENT

STRASBOURG

30 March 2010

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

In the case of Ritter-Coulais v. Germany,

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

Karel Jungwiert, President,
Renate Jaeger,
Mark Villiger, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 2 March 2010,

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

PROCEDURE

The case originated in an application (no. 32338/07) 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 two French nationals, Mr Hans-Jürgen and
Mrs Monique Ritter-Coulais (“the applicants”), on 24 July 2007.

The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the
Federal Ministry of Justice.

On 11 March 2008 the President of the Fifth Section decided to give notice of the application to the Government. The Federal Republic of Germany having accepted the provisional application of the provisions of Protocol 14 governing the power of three-judge committees to decide on cases in which there is well-established case-law, it was decided to assign the application to a Committee. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

1. Background to the case

The applicants were born in 1942 and 1943 respectively and live in Beauvoir-sur-Niort, in France.

In March 1995 the applicants were involved in a road traffic accident in Germany. The driver of the other car also resided in France where he had registered and insured his car.

2. Proceedings before the Regional Court

On 20 February 1998 the applicants lodged an action against the driver of the other car and his insurance company before the Landau Regional Court. They claimed pecuniary damages amounting to some 23,900 German marks (DEM) for both applicants as well as damages for pain and suffering (Schmerzensgeld).

On 19 May 1998 the court granted them a two-week extension of the time-limit to make further submissions. On 29 May 1998 and on two further occasions the applicants extended their claims.

On 29 June 1998 the case was assigned to a single judge.

On 17 September 1998 the Regional Court held an oral hearing in which the parties agreed to adjourn the proceedings until 29 October 1998. However, the hearing scheduled for 29 October 1998 had to be postponed to 26 November 1998 because of the judge's holidays.

On 17 December 1998 the Regional Court commissioned a medical expert report for both applicants. After examining them on 28 April 1999 the Regional Court received the expert's report on 22 July 1999.

On 27 October 1999, having been granted an extension of the
time-limit by one month, the applicants submitted further comments on the expert report and requested the court to commission a supplementary report.

On 2 May 2000 the Regional Court held a further oral hearing.

On 19 June 2000 it reopened the proceedings and scheduled a further hearing for 13 July 2000, as the expert had used documents in his report which had not yet been introduced in the proceedings. It granted the parties two weeks to make their comments. At the applicant's request, the Court postponed the hearing to 11 September 2000.

On 26 October 2000 the Regional Court ordered the defendants to pay the applicants pecuniary damages amounting to DEM 15,100 for both applicants and rejected their further claims.

3. Proceedings before the Court of Appeal

On 28 November 2000 the applicants appealed that judgment before the Zweibrücken Court of Appeal.

On 16 January 2001, after having been granted a further extension of one month, the applicants submitted their statement of grounds.

On 11 April 2001, after holding a hearing on 14 March 2001, the Court of Appeal quashed the Regional Court's judgment. It remitted the case to the Regional Court and ordered the court to obtain an
accident-related and biomechanical expert report (unfall- und biomechanische Gutachten) and a neurootologic expert report, and to apply French law instead of German law as both parties had stronger links to France than to Germany.

4. Proceedings after the remittal

On 6 December 2001 the Landau Regional Court informed the parties that according to the Court of Appeal it had been necessary to commission an interdisciplinary expert report on the circumstances of the accident and the injuries caused thereby. Thereafter a neurootologic expert report would be commissioned. It invited the parties to make their comments and to make suggestions as to the appointment of experts by 22 January 2002.

After an extension of this time-limit the defendants made their comments on 27 February 2002. On 16 April 2002 the Regional Court ordered an interdisciplinary expert report. On 4 July 2002 it appointed the experts agreed upon by the parties after the applicants had paid the court fees and exempted the expert from complying with his obligation of confidentiality (Schweigepflicht).

One of the interdisciplinary experts invited the applicants to present themselves for medical examinations and suggested appointment dates for August, September or November. Because of the applicant's illness they were able to attend only on 14 November 2002. On 9 May 2003 the experts submitted their interdisciplinary report.

On 13 November 2003 the Regional Court requested the applicants to make a further advance on the costs for the forthcoming commissioning of a neurootologic expert report. On 18 December 2003, after the applicants had paid the advance on 10 December 2003, the Regional Court commissioned this report. On 12 May 2004 the expert examined the applicants.
After addressing three reminders to him, the court received his report on 19 January 2005. On 20 April 2005 the applicants submitted their comments on this report after having been granted a two-month extension of the time-limit.

On 20 June 2005 the applicants paid the advance on further expert fees requested by the court on 11 May 2005 in order to hear the neurootologic expert. On 28 June 2005 the court ordered the expert to submit written observations on the defendants' objections.
On 17 October 2005 the expert's observations reached the court, which then invited the parties to make their comments by 2 November 2005.
On 26 October 2005 the applicants requested two further weeks to make their comments, which was granted.

On 28 November 2005 the Regional Court asked the parties whether they would prefer the commissioning of a psychological expert report first, or an expert report on the applicability of French law.
On 19 December 2005 the parties informed the court that they wished to have the expert on the applicability of French law commissioned first.

On 10 February 2006 the court declared that it would be too early to order an expert report on the applicability of French law, as the neurootologic expert had to supplement his report because he had not taken sufficiently into account the findings of a private expert report which the applicants had already submitted during the proceedings preceding the remittal.

On 1 March 2006 the Regional Court ordered the neurootologic expert to supplement his report. On 19 September 2006 the court reminded him about the preparation of his report. However, the expert informed the court that the finalisation of his report would take until the end of the year because of the time-consuming procurement and assessment of the relevant literature.

On 25 October 2006, in order to accelerate the proceedings, the court invited the parties to agree on the applicability of German law to the case which, however, the defendants refused.

On 22 January 2007 the neurootologic expert submitted his supplementary report. On the applicants' request the time-limit to comment on this report was extended by one month, to 20 April 2007.

On 4 May 2007 the court requested the applicants to pay a further advance on the fees for the preparation of a neuropsychological expert report and the expert report on French law. On 29 May 2007 the court appointed the experts. However, on 13 July 2007 the court had to appoint another neuropsychological expert as the other expert was ill.

On 5 September 2007 the report on French law was submitted.

On 9 November 2007 the neuropsychological expert submitted his report, after examining the applicants on 14 September 2007.

On 11 December 2007 the court held an oral hearing in which the parties agreed to stay the proceedings in view of pending extrajudicial friendly settlement negotiations between the parties. Moreover, the court informed the parties that there would be a further report of a medical expert specialised in French law on compensation for damages.

On 6 March 2008 the defendants refused to enter into a friendly settlement and insisted on the commissioning of the above-mentioned expert report (see paragraph 31 above). Subsequently, the proceedings were resumed.

On 23 April 2008 the Regional Court appointed the expert, who submitted his report in French on 27 January 2009. On 12 June 2009 the applicants received the German translation of the report. On the same day the Regional Court fixed the value in dispute at 320,000 euros (EUR).

The proceedings are still pending.

THE LAW

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

The applicants 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 acknowledged that the length of the proceedings was excessive and that therefore there had been a violation of Article 6 § 1 of the Convention.

The period to be taken into consideration began on 16 February 1998 and on 12 June 2009 had not yet ended. It had already lasted on that date eleven years and four months at two levels of jurisdiction including a remittal.

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).

It 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 and considering that the Government have acknowledged that the length of the proceedings had been in breach of Article 6 § 1, the Court considers that there is no reason to reach a different conclusion in the present case. Having regard to 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 Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

Further, the applicants complained that they had not had an effective remedy at their disposal to complain about the length of the proceedings. They alleged a violation of Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government did not contest that argument. They submitted that as there was ongoing consultation between the Federal Government, the parties concerned and the German Parliament it had not yet been possible to introduce an effective remedy within the meaning of Article 13 of the Convention.

The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

The Court has already held that there is no effective remedy under German law capable of affording redress for unreasonable length of civil proceedings (see Sürmeli v. Germany [GC], no. 75529/01, §§ 103-108, ECHR 2006-VII, and Herbst v. Germany, no. 20027/02, §§ 65-66, 11 January 2007). It takes note of the Government's submissions according to which the legislative procedure to introduce a new remedy in respect of inaction is still under way.

Accordingly, the Court considers that the applicants did not have an effective remedy within the meaning of Article 13 of the Convention which could have expedited the proceedings in the Landau Regional Court or provided adequate redress for delays that had already occurred.

There has therefore been a violation of Article 13 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 applicants claimed EUR 10,000 each in respect of
non-pecuniary damage, referring to the amount granted in the case of Sürmeli (see Sürmeli v. Germany [GC], no. 75529/01, § 145,
ECHR 2006 ...) and waived any claims in respect of pecuniary damage.

The Government contested the amount of non-pecuniary damages claimed.

The Court considers that the applicants must have sustained
non-pecuniary damage as a result of the excessive length of the proceedings which is not sufficiently compensated by the finding of a violation.
Ruling on an equitable basis, it makes to both applicants a joint award of
EUR 10,000 under this head.

B. Costs and expenses

The applicants also claimed EUR 486.25 for costs and expenses incurred before the Court (translation post, photocopies and postage costs). They submitted documents in support of their claim. Referring to the case of Sürmeli (see Sürmeli, cited above, § 48), they further claimed a total of EUR 250 for both applicants as the overall length of the proceedings before the Regional Court had entailed an additional financial burden for them.

The Government acknowledged that costs for translation, photocopies and postage were incurred, but contested the claim of EUR 250.

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 documents in its possession and the above criteria, the Court considers it reasonable that the sum of 486.25 claimed should be awarded in full. Furthermore, 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, cited above, § 148, and D.E. v. Germany,
no. 1126/05, § 78, 16 July 2009), it does not find it unreasonable to award both applicants the sum of EUR 250 claimed under this head.

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 application admissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds that there has been a violation of Article 13 of the Convention;

Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts:

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

(ii) EUR 736.25 (seven hundred and thirty-six euros and twenty-five cents) in respect of costs and expenses to both applicants jointly;

(iii) any tax that may be chargeable to them on 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 applicants' claim for just satisfaction.

Done in English, and notified in writing on 30 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Philips Karel Jungwiert
Deputy Registrar President