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VON KOESTER v. GERMANY - 17019/08 [2011] ECHR 1391 (22 September 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1391.html
Cite as:
[2011] ECHR 1391
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FIFTH
SECTION
CASE OF VON KOESTER v. GERMANY
(Application
no. 17019/08)
JUDGMENT
STRASBOURG
22
September 2011
This
judgment is final but it may be subject to editorial revision.
In the case of von Koester v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 30 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 17019/08) 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, Mr Hans-Georg von Koester (“the applicant”),
on 21 September 2007.
The
applicant was represented by Mr H.-K. von Koester, a lawyer
practising in Wiesbaden. The German Government (“the
Government”) were represented by their Deputy Agent, Mr H.-J.
Behrens, Ministerialrat, of the Federal Ministry of Justice.
On
24 November 2009 the
Court declared the application partly inadmissible and 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
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1922 and lives in Bonn.
On
17 April 1989 the applicant brought civil proceedings before the
Wiesbaden Regional Court against the former tenant of his business
premises, claiming, inter alia, payment of outstanding rent.
Until October 1989 he extended or amended the action four times.
After
an oral hearing on 11 October 1989 the Regional Court
partly found for the applicant on 29 November 1989 by way
of a default judgment (Versäumnis-Teilurteil).
On
21 February 1990 the applicant again extended his claim. By final
judgment of 28 March 1990 (Schlussurteil) the Regional Court
partly found for the applicant and dismissed his remaining claims. On
23 July 1990 the judgment was served on the applicant.
Both
parties appealed against the judgment. On 24 September 1990 the
applicant submitted his grounds of appeal and again extended his
action. Upon his requests he was granted two further extensions of
time-limits of one month respectively. On 29 April 1991 the applicant
again extended his claims.
On
18 March 1992, after an oral hearing on 26 February 1992, the
Frankfurt a.M. Court of Appeal commissioned two expert reports which
were delivered on 10 February 1993 and on 9 June 1993. After an
extension of the time-limit of one week the applicant on 6 October
1993 submitted objections to one of the reports.
On
13 April 1994 the Court of Appeal gave a partial judgment on
provisional enforceability.
On
4 October 1994 the Court of Appeal commissioned a further expert
report which was delivered on 24 February 1996, after the court had
enquired about the report five times. After an extension of the
time-limit of two weeks the applicant submitted objections to the
report.
On
26 March 1997 the Court of Appeal held an oral hearing, heard one
expert and the applicant lodged an auxiliary request. On 25 June 1997
the Court of Appeal partly quashed the Regional Court’s
judgment.
On
7 August 1997 the applicant lodged an appeal on points of law. Upon
his request he was granted an extension of three months of the
time-limit for submitting his grounds of appeal.
On
9 February 2000 the Federal Court of Justice partly quashed the
judgment of the Court of Appeal and insofar remitted the case.
On
24 January 2001 the Court of Appeal held an oral hearing and on
21 March 2001 gave its judgment. In April 2001 the applicant
lodged a constitutional complaint against the judgment.
On
15 January 2003 the Hessen Constitutional Court quashed the Court of
Appeal’s judgment and remitted the case, finding that the
applicant’s right to be heard had been violated.
On
7 May 2003 the Court of Appeal held an oral hearing and heard an
expert. On 28 May 2003 it commissioned a supplemental expert report
and ordered the applicant to pay advance costs of EUR 2,000 for the
expert. On 13 June 2003 the applicant objected to the amount. On 16
June 2003 and 7 July 2003 the Court of Appeal enquired about the
payment of the costs.
After
having been informed by the defendant in September 2003 that the
parties were negotiating on a settlement of the dispute, the Court of
Appeal until May 2004 enquired four times about the state of affairs
but received no answers.
Between
June 2004 and June 2005 the applicant submitted several appeals
against cost orders.
Between
February 2005 and October 2005 the applicant submitted three motions
for bias, all of which were dismissed.
On
21 September 2005 the Court of Appeal held an oral hearing and on 26
October 2005 it issued an order for the taking of evidence.
On
18 January 2006 another hearing was held. On 8 February 2006 the
Court of Appeal issued a judgment by consent (Anerkenntnisurteil)
and decided on the value in dispute and the distribution of the costs
of the entire proceedings (Kostengrundentscheidung).
On
23 February 2006 the applicant submitted a motion for the right to be
heard (Anhörungsrüge), a motion for reconsideration
(Gegenvorstellung) and a fourth motion for bias. On 22 March
2006 the Court of Appeal rejected the motion for bias. On 10 April
2006 the applicant submitted a motion for the right to be heard
against this decision and a fifth motion for bias. On 20 April 2006
the applicant submitted a revised and supplemented version of his
submissions of 10 April 2006, which he supplemented again on 24 and
29 April 2006. On 15 May 2006 the last motion for bias was dismissed
as abusive. On 2 June 2006 the applicant submitted a motion for the
right to be heard against the decision of 15 May 2006. On 7 June
2006 the Court of Appeal held a hearing at which the parties did not
appear. On 14 June 2006 the Court of Appeal dismissed the applicant’s
motions of 23 February 2006. On 7 July 2006 the applicant submitted a
motion for the right to be heard against the decision of 14 June 2006
and a sixth motion for bias. The latter was dismissed as inadmissible
on 12 July 2006.
On
4 September 2006 the applicant lodged a constitutional complaint with
the Hessen Constitutional Court in which he mainly complained about
the distribution of the costs of the proceedings.
On
14 March 2007 the Hessen Constitutional Court ordered the applicant
to pay an advance on court fees amounting to EUR 750 and informed him
that it had doubts as to the admissibility of his constitutional
complaint. On 21 March 2007 that decision was served on the
applicant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant 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 did not contest that argument but emphasized that the
subject matter in particular had been factually complex. In this
respect, they argued that the applicant inter alia had
successively lodged numerous individual claims, that he had amended
his claim several times and that three experts had to be heard. They
also pointed out that the applicant’s lodging of auxiliary
requests, motions for bias, numerous objections and requests for
extensions of time-limits as well as unclear submissions further
complicated the proceedings. Therefore, the applicant’s conduct
had considerably contributed to the length of the proceedings.
Finally, they conceded that the proceedings were not of minor
importance for the applicant as they originally concerned claims
amounting to several DEM 10,000.
The
period to be taken into consideration began on 17 April 1989 when the
applicant brought his action and ended on 21 March 2007 when the
Hessen Constitutional Court’s decision was served on the
applicant (see, for example, Hoffer and Annen v. Germany, nos.
397/07 and 2322/07, § 53, 13 January
2011). It thus lasted 17 years, 11 months and 7 days at four
levels of jurisdiction including two remittals.
A. Admissibility
The
Court notes that this complaint 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.
However, the Court agrees with the Government that the applicant’s
conduct contributed to the factual complexity of the case as well as
to several delays caused inter alia by numerous motions,
objections and requests for extensions of time-limits (see above
paragraph 28). His conduct thus contributed to the length of the
proceedings. Moreover, it takes note of the financial amount at
stake. 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. 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 requested compensation for pecuniary and non-pecuniary
damage. He left the amount to the discretion of the Court.
The
Government did not express an opinion on the matter.
The
Court observes that the applicant did not submit a specified claim
for pecuniary damage; it therefore rejects this claim. On the other
hand, it considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards award
him EUR 12,600 under that head.
B. Costs and expenses
The
applicant did not submit a specified claim for costs but left the
matter to the discretion of the Court.
The
Government did not express an opinion on the matter.
In
view of the lack of a specified claim, the Court who can not
speculate on the costs and expenses of the applicant rejects the
claim for costs and expenses in the domestic proceedings as well as
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 remainder of the application
admissible;
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,
EUR 12,600 (twelve thousand six hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 22 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
