European Court of Human Rights

Resolution CM/ResDH(2011)113¹

Execution of the judgment of the European Court of Human Rights

Freitag against Germany

(Application No. 71440/01, judgment of 19 July 2007, final on 19 October 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the violation of the applicant’s right of access to a court due to the delay with which a court transferred the case to another competent court (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)113

Information about the measures to comply with the judgment in the case of

Freitag against Germany

Introductory case summary

This case concerns the violation of the applicant’s right of access to a court (violation of Article 6§1).

On 5 March 1998 the applicant, a shareholder of an insurance company based in Berlin, brought proceedings against the company to obtain compensation for the loss in value of his shares caused by a merger with another company based in Hamburg. The applicant first brought the proceedings before the Hamburg Regional Court which declared that it had no local jurisdiction to decide the case. The applicant requested a transfer of his case-file to the competent Berlin Regional Court. However, on 2 September 1998 the latter declared the case inadmissible as it had received it only after the expiry of the two-month time-limit for submission.

The European Court found that the delays had been caused by the Hamburg Regional Court and that the applicant could not be expected to bring new proceedings before the Berlin Regional Court, thus incurring more court fees. By declaring the case inadmissible, the domestic courts had failed to strike a fair balance between the general interest of legal certainty and the applicant’s right to have his claim examined by the court.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of a loss of opportunity as he had not been able to have the merits of his claim examined. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

According to Section 281 of the Code of Civil Procedure, an action complies with the time-limit even if it has been lodged with a court which is not competent and is only transferred to the competent court after the expiry of the statutory time limit. In the present case, the Berlin Regional Court held that this provision did not apply to proceedings concerning shareholders’ compensation. However, a decision of the Federal Court of Justice given on 13 March 2006 (after the facts of the present case) shows that the Section 281, quoted above, should also apply by analogy to such proceedings.

It appears from the examination of the jurisprudence of the Federal Court of Justice that the violation in this case arose from an isolated procedural error, since this court’s case-law does provide the possibility to transfer a case to the competent court even after the expiry of the statutory period for submission. Publication and dissemination of the Court’s judgment to the relevant authorities should prevent similar violations.

The judgment of the European Court has been sent out to the courts directly concerned and published in German, available via the website of the Federal Ministry of Justice (www.bmj.de , Themen: Menschenrechte, EGMR) which provides a direct link to the European Court’s website for judgments in German (http://www.coe.int/t/d/menschenrechtsgerichtshof/dokumente_auf_deutsch/volltext/urteile/20070719-F.asp#TopOfPage.

III. Conclusions of the respondent state

The government considers that no individual measure is required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1, of the Convention.