FIFTH SECTION
DECISION
Application no. 16996/03
by Gerlinde BEAU
against Germany
The European Court of Human Rights (Fifth Section), sitting on
11 September 2007 as a Chamber composed of:
MrsS. Botoucharova, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 9 May 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the formal declarations accepting a friendly settlement of the case.
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Gerlinde Beau, is a German national who was born in 1963 and lives in Kassel. She was represented before the Court by Mr K. Hügel, a lawyer practising in Konstanz. The German Government (“the Government”) were represented by their Agent,
Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In December 1988 the applicant was involved in a car accident.
On 9 December 1991 she brought an action against the other party and his insurers before the Konstanz Regional Court seeking pecuniary damages and compensation for pain and suffering.
On 3 June 1992 the court appointed an expert to provide a report on the medical consequences of the accident for the applicant.
On 11 August 1992 the court replaced the expert by another one.
On 7 December 1992 the expert gave his report, and on 1 February 1993 the court ordered a further written neurological report from a new expert.
On 19 March 1993 the court changed its foregoing decision and appointed another expert to render a psychiatric report. On 13 July 1993 the report was produced.
Between July 1993 and 30 November 1994 the single judge was replaced three times. On 30 November 1994 the Konstanz Regional Court rejected the applicant’s claim. It found that the applicant’s alleged injury to her health had no physical reason which was due to the accident.
On 28 March 1996 the Karlsruhe Court of Appeal rejected the applicant’s appeal. The court confirmed the lower court’s findings and reasoning. One of the judges (X) had previously participated as a single judge in the proceedings before the Konstanz Regional Court before being replaced.
On 11 November 1997 the Federal Court of Justice quashed the foregoing decision and remitted the case to the Karlsruhe Court of Appeal. The proceedings before the Court of Appeal continued with the same composition as in the previous proceedings.
On 10 December 1998 the parties declared that the legal dispute had partly been settled in the sum of 50,500 Deutschmarks (DEM).
On 10 December 1998 the Karlsruhe Court of Appeal ordered a report on the question whether the accident could be regarded as an event with only a minor potential for injuries.
On 1 February 1999 the court appointed two experts to provide a technical and a medical report. The reports were rendered on 14 April 1999 and 6 November 1999 respectively.
On 18 May 2000 the court ordered a further medical report, finding that the previous medical expert had not examined the applicant and that the expert had gone beyond the scope of his remit.
On 28 June 2000 the court rejected the applicant’s objection (Gegenvorstellung) to its decision of 18 May 2000, appointed a further expert and, in particular, ordered a medical examination of the applicant.
On 13 December 2001 the Karlsruhe Court of Appeal rejected the applicant’s appeal against the decision of the Konstanz Regional Court of 30 November 1994. The court found that on the basis of the expert opinions and the fact that the applicant had failed to submit to a medical examination it was not ascertainable whether the circumstances of the case led to the defendants’ liability for damages.
On 18 June 2002 the Federal Court of Justice rejected the applicant’s appeal on points of law.
On 4 November 2002 the Federal Constitutional Court rejected the applicant’s constitutional complaint.
COMPLAINT
The applicant complained under Article 6 of the Convention about the length of the proceedings before the German civil courts.
THE LAW
On 16 July 2007 the Court received the following declaration from the Government signed on 12 July 2007:
“I, Mrs Almut Wittling-Vogel, Agent of the Government, declare that the Government of Germany offer to pay ex gratia 6,000 euros to Ms Gerlinde Beau with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 26 July 2007 the Court received the following declaration from the applicant’s counsel signed on 23 July 2007:
“I, Mr Kurt Hügel, lawyer, note that the Government of Germany are prepared to pay me ex gratia the sum of 6,000 euros to Ms Gerlinde Beau with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.
I accept the proposal and waive any further claims against Germany in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia WesterdiekSnejana Botoucharova
RegistrarPresident
Full & Egal Universal Law Academy