CASE OF NIESEN v. GERMANY

FIFTH SECTION

CASE OF NIESEN v. GERMANY

(Application no. 32513/08)

JUDGMENT

STRASBOURG 

21 October 2010

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

In the case of Niesen 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

1. The case originated in an application (no. 32513/08) 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 Lieselotte Niesen (“the applicant”), on 7 July 2008.

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

3. On 16 December 2008 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol 14 the application was assigned 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

4. The applicant was born in 1950 and lives in Cologne (Köln).

5. The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Background to the case

6. On 1 December 2003 the applicant and her husband entered into a notarial purchase agreement regarding the acquisition of real property with a house for the purchase price of 325,000.00 euros (EUR). The vendor assured them in the notarial purchase deed that the house disposed of two separate apartments and had all necessary permits for use by two parties.

7. In January 2004 the applicant learned that parts of the construction had been carried out without the required permission and that the use of the building by two parties had not been authorised.

8. The applicant then set time-limits for the vendor to rectify the corresponding defects on various occasions and retained part of the purchase price. Following the expiry of a final deadline set for August 2004 without the defects being removed, the applicant, who had meanwhile paid part of the purchase price in the amount of EUR 262,000.00, set off the residual sum in the amount of EUR 63,000.00 against her claim for compensation for the damage incurred by her due to the defects. The vendor for his part refused transfer of title.

9. In the following the vendor commissioned structural alteration works to be carried out on the real property in line with a construction permit obtained on 1 September 2004. However, the applicant found the alteration works to be insufficient and maintained the set-off.

B. The proceedings before the Cologne Regional Court

10. On 28 October 2004 the applicant instituted proceedings against the vendor of the property before the Cologne Regional Court (Landgericht) for transfer of title and possession (file No. 8 O 391/04).

11. On 26 November 2004 upon receipt of advance payments for court costs by the applicant, the Regional Court scheduled a first hearing for 21 April 2005.

12. In January 2005 the vendor announced the commencement of execution as regards the outstanding part of the purchase price.

13. On 17 January 2005 the applicant lodged an action to oppose execution of the vendor’s claim for payment of the residual amount of the purchase price (Vollstreckungsabwehrklage) with the Cologne Regional Court (file No. 8 O 23/05) and requested an interim order for suspension of execution until a judgment in the case had been rendered.

14. On 19 January 2005 the Regional Court also scheduled a first hearing in this matter for 21 April 2005.

15. On 28 January 2005 the Regional Court ordered the provisional discontinuation of the execution of the vendor’s claim for payment of the remaining purchase price against provision of security (Sicherheitsleistung).

16. On 21 April 2005 a hearing took place in both proceedings (file No. 8 O 391/04 and file No. 8 O 23/05), upon which the applicant and the vendor agreed that transfer of the real property should take place on 28 or 29 April 2005 in accordance with the stipulations of the notarial purchase deed. The parties also asked for both proceedings to be suspended. It appears that the applicant took possession of the property on the agreed dates.

17. Following a request by the vendor on 14 June 2005 for both proceedings to be resumed, the Regional Court summoned the parties by order of 24 June 2005 to a hearing that took place on 10 November 2005. On the occasion of the hearing the applicant submitted written observations requesting in addition to her claim for transfer of title and possession, compensation in the amount of EUR 32,405.30. The hearing was postponed pending receipt of advance payments for court costs regarding the applicant’s additional claim.

18. A new hearing was scheduled by the Regional Court on 28 December 2005 upon receipt of the further advance payments for court costs by the applicant for 11 May 2006.

19. On 4 May 2006 the applicant, following repeated extensions of the initial time-limit set for 6 April 2006, submitted further written observations.

20. At the hearing of 11 May 2006 the Regional Court set a time-limit until 26 May 2006 for further written submissions by the vendor in reply to the applicant’s written submissions of 4 May 2006. The applicant was granted the same time-limit for written submissions with a view to specifying the claims to be set off against the remaining purchase price.

21. By a decision of 13 July 2006 regarding both proceedings the Regional Court indicated to what extent the existence of the alleged structural defects still had to be substantiated by the applicant and further pointed out that a corresponding expert opinion which had been obtained on the applicant’s own motion did not constitute sufficient evidence in this respect. The Regional Court also submitted a proposal for a friendly settlement between the parties comprising both proceedings and granted the parties a time-limit of four weeks for their related comments.

22. On 14 August 2006 the vendor submitted written observations to which the applicant replied on 5 September 2006. The vendor commented by written pleadings of 2 November 2006 and the applicant replied on 8 December 2006.

23. By written submissions to the Regional Court dated 10 and 26 October, 2 November and 8 December 2006 as well as by a letter dated 29 January 2007, the applicant and her lawyer emphasised the urgency of a decision in the matter in view of the increasing financial burden for the applicant resulting from the unclear legal situation.

24. On 16 March 2007 the Regional Court informed the applicant’s lawyer that a decision on how to proceed in the case could not yet be taken due to a further change in the person of the judge rapporteur. The Regional Court explained that the new judge rapporteur had not yet had the time to become familiarised with the complex case since other matters were to be treated as a priority.

25. On the occasion of a telephone conversation with the acting judge on 20 March 2007 and by written submissions to the Regional Court dated 23 April 2007 the applicant’s lawyer again pointed out that, as the applicant could not use the acquired property, she faced serious economic losses and stressed the importance of a decision by the Regional Court in due course so that the property would no longer lie as a wasted asset.

26. By a letter dated 27 April 2007 the presiding judge apologised to the applicant for the delays in the proceedings pointing out that the delays prior to the change of the judge rapporteur could not be attributed to the court.

27. On 16 May 2007 the Regional Court decided to order a joint expert opinion for both proceedings with a view to determining the actual defects and the measures required to have the structural alterations authorised.

28. On 27 June 2007, following receipt of the advance payment for the related expenses by the applicant, the Regional Court charged the appointed expert with the preparation of the opinion and set a time-limit of three months for its finalisation.

29. On 6 July 2007 the vendor notified the architect who had been working for him of the litigation in view of a possible third party intervention (Streitverkündung) in the proceedings. By written submissions of 9 August 2007 the architect joined the proceedings on the vendor’s side as a third party defendant.

30. On 23 August 2007 the expert carried out a local inspection of the real property.

31. On 20 September 2007 the Regional Court requested the expert to repeat the local inspection.

32. The expert opinion was rendered on 12 December 2007.

33. By written submissions of 28 December 2007 the applicant again extended her claim and requested compensation in the additional amount of EUR 41,600.00 plus interest for loss of rent for the period from May 2005 to December 2007 and asked that the vendor be obliged to compensate all further damages caused by the lack of a permit for use of the house by two parties and by the insufficient alteration works carried out by the vendor.

34. On 18 January 2008 the Regional Court forwarded the expert opinion of 12 December 2007 to the parties for comments to be submitted within a time-limit of six weeks. The applicant and the third party defendant requested the commissioning of a supplementary expert opinion.

35. On 1 April 2008 the Regional Court decided to request a second expert opinion with a view to determining the costs of the measures required to bring the house in line with the requirements of the building permit.

36. On 30 April 2008 the expert was charged with the preparation of the corresponding opinion and given a time-limit of three months for its finalisation.

37. Following an inquiry by the Regional Court on 5 September 2008, the expert announced that the opinion would be finalised by the end of September 2008. It was delivered on 24 September 2008.

38. On 15 October 2008 the expert opinion was served on the parties who were granted a time-limit of one month for possible comments. The third party defendant raised further objections against the expert opinion and requested a further supplementary opinion or, alternatively, asked that the expert be heard by the court. The applicant also asked for a supplementary expert opinion.

39. On 19 December 2008 the Regional Court scheduled a hearing for the 23 April 2009 to which the expert was summoned with a view to further clarifying her findings.

40. On the occasion of the hearing on 23 April 2009 the expert replied to questions raised by the parties and the third party defendant with respect to her expert opinion. The Regional Court made a further proposal for a friendly settlement in both proceedings to the parties and set a time-limit for 22 May 2009 for the parties’ related comments. A decision in both matters was announced for 18 June 2009.

41. By written submissions dated 8 May 2009 the applicant rejected the court’s proposal for a friendly settlement.

42. On 25 June 2009 the Regional Court rendered judgments in both proceedings. It dismissed the applicant’s claim for transfer of title to the real property since only an amount of EUR 25,078.76 could be set off by the applicant and the remainder of the purchase price had thus not been fully paid but awarded her damages for additional building costs in the amount of EUR 4.270,00 (file No. 8 O 391/04). Considering that EUR 287,078.76 of the purchase price had already been paid by the applicant, the court further declared the execution of the vendor’s claim for payment inadmissible with respect to this amount (file No. 8 O 23/05).

C. The proceedings before the Cologne Court of Appeal

43. By written submissions of 27 July 2009 (file No. 8 O 23/05) and 25 August 2009 (file No. 391/04) respectively, the applicant lodged appeals against the said judgments with the Cologne Court of Appeal.

44. A hearing that was scheduled by the Court of Appeal in both proceedings for 14 January 2010 was postponed to 4 February 2010 since the third party defendant’s lawyer was unable to attend.

45. On 25 March 2010 the Court of Appeal rendered judgments in both proceedings. It dismissed the appeal against the judgment of the Regional Court in the proceedings regarding transfer of title to the real property (file No. 12 U 51/09). As regards the proceedings concerning execution of the vendor’s claim for payment, the Court of Appeal amended the Regional’s Court’s judgment considering that the purchase price already paid by the applicant amounted to EUR 298,232.76 and that with respect to this amount execution of the vendor’s claim for payment of the purchase price was inadmissible. It dismissed the remainder of the applicant’s appeal (file No. 12 U 45/09).

THE LAW

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

46. 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...”

47. The Government contested that argument. They argued that the proceedings related to the examination of defects in construction of real property, an area that was particularly complex and where difficulties arose in particular as regards the establishment of facts. The Government pointed out that the observations submitted by the parties were exceptionally voluminous and that the expert opinions had to deal with a large number of detailed questions. As regards the importance of what was at stake in the proceedings, the Government, while accepting that the dispute was a source of great strain for the applicant, adduced that her case did not fall within the category of cases that required particularly swift action because or their pre-eminent importance. In respect of the conduct of the proceedings the Government conceded that the Regional Court had scheduled hearings over a period of around five months on two occasions and that between the applicant’s submissions dated 8 December 2006 and the court’s order for the taking of evidence of 16 May 2007 another five months elapsed. They further acknowledged that the changes in the person of the judge rapporteur required some time for the new judge to familiarise with the case and necessitated new consultation of the parties and additional deliberations. However, the Government invoked that notwithstanding these difficulties and the fact that the Regional Court had been subject to an overload of work, it was also the applicant’s conduct that had significantly contributed to the duration of the proceedings. The parties themselves had asked for suspension of the proceedings on the occasion of the hearing of 21 April 2005. The applicant had extended his claim and had submitted new submissions on the occasion of the hearing of 10 November 2005 which thus had to be postponed. Her numerous applications for extension of the deadlines set for the submission of written observations had also contributed to the duration of the proceedings as well as her repeated objections to the expert opinions and her requests for supplementary expert opinions.

48. The periods to be taken into consideration began on 28 October 2004 (file No. 391/04) and on 17 January 2005 (file No. 8 O 23/05) respectively. The proceedings at first instance ended with the judgments of the Cologne Regional Court of 25 June 2009 and thus lasted almost four years and eight months (file No. 391/04) and over four years and five months (file No. 8 O 23/05) respectively. The Cologne Court of Appeal decided on the appeals lodged in both proceedings by judgments of 25 March 2010. The proceedings have thus lasted almost five years and five months (file No. 391/04) and over five years and two months (file No. 8 O 23/05) for two levels of jurisdiction.

A. Admissibility

49. 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

50. 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).

51. 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).

52. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument persuading it to reach a different conclusion in the present case. The Court observes that there is no indication that the conduct of the proceedings at second instance before the Cologne Court of Appeal failed to meet the “reasonable time” requirement under Article 6 § 1. However, as regards the proceedings before the Cologne Regional Court at first instance, the Court, while noting that the case was of a certain complexity and that the applicant contributed to the length of the proceedings to a certain extent, cannot ignore that there have been several periods of delay attributable to the Regional Court. It observes in this context that the hearings of 21 April 2005 and 11 May 2006 were scheduled over periods of approximately five months in advance in each case. Following changes in the person of the judge rapporteur in 2007 which led to further delays, the Regional Court ordered the taking of a first expert opinion on 16 May 2007 more than two-and-a-half years after the proceedings had been instituted. A second expert opinion was ordered on 1 April 2008. Even though both expert opinions had been the subject of an extensive exchange of written submissions and objections by the parties, it was only on the occasion of the hearing of 23 April 2009 that the parties were given the opportunity to put questions directly to the expert with a view to expediting the proceedings. 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

53. 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

54. The applicant claimed EUR 282,524.72 in respect of pecuniary damage. She further claimed just satisfaction in respect of non-pecuniary damage for the excessive length of the proceedings which had caused her chronic stress as well as health, psychological and social problems and had ruined her financially. She left the amounts to be awarded in this respect at the Court’s discretion.

As regards the pecuniary damage, she argued that due to the length of the proceedings and the fact that the real property in dispute could not be rented out she suffered a loss of rent of EUR 1,300 per month including interests at a rate of 12.5% amounting to EUR 106,870.83 for a period of five years. She claimed an additional loss of rent of EUR 1,923 per month for the period from 2005 to 2008, amounting to 118,620.60 in total, on the ground that her involvement in the proceedings and their financial implications prevented her from renting out another property owned by her but not related to the one in dispute. The applicant further alleged that due to the financial problems encountered by her as a result of the proceedings she had to sell a car below value causing her a loss of EUR 33,000 as well as hunting equipment at an estimated value of EUR 7,000. She finally claimed an amount of EUR 17,033.29 for diverse costs related to bank loans, insurances, operating expenses etc.

55. The Government contested these claims. As regards the applicant’s claims for pecuniary damages they argued that she failed to demonstrate that these damages had been caused by the length of the proceedings. They further submitted that in view of the circumstances of the case, the granting of non-pecuniary damage was not appropriate.

56. The Court finds that the applicant did not demonstrate that the alleged pecuniary damage had actually been caused by the length of the proceedings. In particular, it has not been established that the real property could not be rented out after the applicant had taken possession thereof. Furthermore, the Court does not discern any causal link between the violation found and the pecuniary damages alleged; 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 her EUR 2,800 under that head.

B. Costs and expenses

57. The applicant also claimed costs for paper, postage and travel expenses without specifying their total amount or whether they were related to the proceedings before the domestic courts or the Court. Documentary evidence was only provided with respect to costs related to the proceedings before the Court.

58. The Government did not express an opinion on the matter.

59. 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 were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court awards the applicant EUR 200 in this respect plus any tax that may be chargeable to her.

C. Default interest

60. 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

1. Declares the application admissible;

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

3. Holds

(a) that the respondent State is to pay the applicant, within three months,

(i) EUR 2,800 (two thousand eight hundred euros) in respect of non-pecuniary damage;

(ii) EUR 200 (two hundred euros) in respect of costs and expenses;

(iii) any tax that may be chargeable to the applicant 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. 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 RegistrarPresident

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