CASE OF PETERMANN v. GERMANY

FIFTH SECTION

CASE OF PETERMANN v. GERMANY

(Application no. 901/05)

JUDGMENT

STRASBOURG 

25 March 2010

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

In the case of Petermann 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

1. The case originated in an application (no. 901/05) 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 Petermann
(“the applicant”), on 18 December 2004.

2. The applicant was represented by Mr K. Dammann, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.

3. On 5 February 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time
(Article 29 § 3). The Federal Republic of Germany having accepted the provisional application of the provisions of Protocol no. 14 governing the power of three judge Committees to rule on cases in which there is a well-established case-law, it was further decided to assign the application to a Committee after consultation of both parties, who did not object.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1947 and lives in Hamburg.

A. Background to the case

5. On 30 March 1985 the applicant was attacked in an urban train by one or two men and his right leg and his back were seriously injured.

6. By a decision of 24 April 1986, as amended by an acknowledgement (Anerkenntnis) before the Hamburg Social Court on 21 November 1988, the Hamburg Pension Office (Versorgungsamt) granted the applicant a pension under the Victims Compensation Act (Opferentschädigungsgesetz) because of a reduction in his earning capacity of 50 per cent for four months and of 30 per cent for another six months covering the period from 30 March 1985 until 31 January 1986. It found that as of 1 February 1986, the loss of earning capacity amounted to less than 25 per cent, so that no pension was payable.

7. On 21 November 1988 the Hamburg Social Court dismissed the applicant's claim for a higher pension.

B. The proceedings before the Hamburg Pension Office

8. On 20 March 1990 the applicant, represented by counsel, lodged a request to amend the Pension Office's decision of 24 April 1986. He argued that the damage to his health suffered as a result of the attack on
30 March 1985 had increased following the Hamburg Social Court's judgment of 21 November 1988. He claimed the payment of a pension under the Victims Compensation Act from March 1990 onwards as the loss of his earning capacity now amounted to at least 50 per cent.

9. On 26 September 1990 the Hamburg Pension Office, having consulted its surgical expert, refused to amend its decision, arguing that there had not been an essential change in the damage caused by the attack.

C. The proceedings before the Hamburg Social Court

10. On 17 October 1990 the applicant brought an action in the Hamburg Social Court against the decision of the Hamburg Pension Office dated
26 September 1990.

11. Between 22 April and 6 June 1991 the statements of three doctors treating the applicant were submitted to the Social Court.

12. On 25 July 1991 surgical expert K., who had been appointed by the Social Court on 13 June 1991, submitted his report. He found that the applicant's loss of earning capacity since March 1990 for surgical reasons alone was below 25 per cent.

13. On 13 December 1991 Bo., a neurological and psychiatric expert appointed by the court on 9 August 1991, submitted his report. He found that the applicant had not suffered any damage to his mental health as a result of the attack in 1985.

14. On 15 April 1992 expert Bo. further commented on his report dated 3 December 1991 at the court's request.

15. On 5 January 1993 the Social Court granted the applicant legal aid.

16. On 13 January 1994 Bi., a neurological and psychiatric expert appointed by the court on 23 July 1993, submitted his report. He diagnosed the applicant as suffering from post-traumatic stress caused by the attack in 1985 and estimated the total loss of his earning capacity (including surgical and psychological aspects) at 30 per cent.

17. By a statement dated 16 March 1994 a neurological and psychiatric doctor working for the Pension Office contested expert Bi.'s findings.

18. On 26 June 1995 W., a neurological and psychiatric expert appointed by the court on 17 August 1994 at the applicant's request under section 109 of the Social Courts Act (see paragraph 48 below), submitted his report at the court's repeated requests. He found that the applicant had also suffered mental damage due to the constant pain in his right knee and assessed the total loss of his earning capacity (including surgical and psychological aspects) since March 1990 at 30 per cent.

19. In a statement dated 27 October 1995 a neurological and psychiatric expert working for the Pension Office contested expert W.'s findings.

20. On 15 May 1996 D., an orthopaedic expert appointed by the court on 2 October 1995 at the applicant's request under section 109 of the Social Courts Act, submitted his report. He found that the reduction of the applicant's earning capacity for orthopaedic reasons alone amounted to 30 per cent.

21. On 28 August 1996 and on 17 December 1996 the applicant requested the court to expedite the proceedings.

22. On 8 January 1997 surgical expert St., and, on 22 January 1997, the neurological and psychiatric expert Br., who were both working for the Pension Office, submitted statements on the latter's behalf.

23. On 18 February 1997 the Hamburg Social Court held a hearing.
It consulted expert Bi., who partly modified the findings he had made in his report of 1994 and found that in fact it was not sure that the impairment to the applicant's psychological well-being was caused by the attack in 1985.

24. Following the acknowledgment of the court's proposal on 4 February 1997, the Hamburg Pension Office, by a decision of
4 April 1997, amended its decision of 26 September 1990. It found that the applicant's total earning capacity has been reduced by 30 per cent since
1 March 1990, granted him a pension under section 1 of the Victims Compensation Act (see paragraph 50 below) and ordered the payment of pension arrears of some 19,000 Deutschmarks (DEM).

25. On 15 May 1997 and on 20 August 1997 the applicant requested the Social Court to set a date for a hearing and to deliver a judgment.

26. On 22 September 1997 neurological and psychiatric expert Bi. submitted an additional report at the Social Court's request.

27. On 30 September 1997 the Hamburg Social Court, having held a hearing in which it had also consulted expert Bi., dismissed the applicant's action (file no. 30 VG 11/90). It found that, having regard to the opinions of the experts it had consulted, the Hamburg Social Office's decision of
4 April 1997 was lawful, as the applicant had been suffering a reduction in his earning capacity of 30 per cent due to orthopaedic damage since
March 1990, whereas no psychological damage caused by the attack had been proved.

28. The judgment was served on 20 October 1997.

D. The proceedings before the Hamburg Social Court of Appeal

29. On 20 November 1997 the applicant, represented by counsel, lodged an appeal with the Hamburg Social Court of Appeal. He claimed that the reduction of his earning capacity caused by the attack in 1985 amounted to 50 per cent in view of the psychological consequences of that attack in addition to the acknowledged physical damage.

30. On 19 July 1999 the applicant's counsel, having consulted the case-file in February 1998, gave reasons for his appeal at the court's repeated requests.

31. Between 22 November 1999 and May 2000 the applicant requested on five occasions that the Social Court of Appeal expedite the proceedings.

32. On 3 May 2000 the Social Court of Appeal granted the applicant legal aid.

33. On 12 and 25 October 2000 the applicant requested the court to expedite the proceedings. The court replied on 6 November 2000 stating that it was currently unable to deal with the case as it had sent the files to the Social Court at the latter's request for consultation in different proceedings.

34. On 21 November 2001 N., a neurological and psychiatric expert appointed by the Social Court of Appeal on 19 September 2001, submitted his report. He found that no psychological damage had been caused to the applicant as a result of the attack in 1985.

35. On 19 December 2001 the Social Court of Appeal held a hearing in which it heard the parties and consulted expert N. It granted the applicant's request under section 109 of the Social Courts Act to consult another psychiatric expert, Ke., on condition that the applicant paid for the cost of the report.

36. On 6 February 2002 the applicant informed the court that he now had the money needed and that he could make a bank transfer covering costs.

37. On 6 June 2002 the Social Court of Appeal appointed expert Ke.

38. On 16 July 2002 the applicant made an additional payment of costs at the expert's and the court's request.

39. On 3 February 2003 expert Ke. submitted his report. He found that the applicant suffered from post-traumatic stress disorder as a result of the attack in 1985 and estimated the reduction of the applicant's earning capacity caused by psychological damage alone to be 20 per cent.

40. On 26 February 2003 expert Ke. further explained his report at the court's request. On 22 May 2003 the Social Court of Appeal again sent the case-file to the Social Court for a calculation of costs; the file was returned on 7 July 2003.

41. On 27 August 2003 the applicant asked the court to expedite the proceedings.

42. On 6 January 2004 a further neurological expert (L.) consulted by the Social Court of Appeal submitted his report in which he found that it was not proved that the applicant had suffered post-traumatic stress disorder as a result of the attack in 1985.

43. On 27 January 2004 the Hamburg Social Court of Appeal, having held a hearing, dismissed the applicant's appeal as ill-founded and did not grant him leave to appeal on points of law (file no. IV VGBf 1/97). Having regard to the expert reports before it, it considered that it had not been proved that the applicant had suffered psychological damage as a result of the attack in 1985 as, in particular, the report of expert Ke. was not convincing. The Social Court of Appeal further rejected the applicant's case alleging bias on the part of neurological and psychiatric expert L. as having been lodged out of time, arguing that the applicant's counsel had been obliged to lodge that application on receipt of the applicant's comments on the expert report at the latest (18 January 2004).

44. The judgment was served on the applicant's counsel on
22 June 2004.

E. The proceedings before the Federal Social Court

45. On 12 July 2004 the applicant, represented by an association for the protection of social rights, lodged a complaint about the refusal to be granted leave to appeal (Nichtzulassungsbeschwerde) with the Federal Social Court. In his reasoning submitted on 19 August 2004 he claimed that the Social Court of Appeal had deviated from the case-law of the Federal Social Court. Moreover, there had been a procedural error in that the length of the proceedings from 1990 until 2004 had breached his right to a fair trial within a reasonable time under the Basic Law and under Article 6 § 1 of the Convention.

46. On 25 August 2004 the Federal Social Court dismissed the applicant's complaint. It considered the complaint inadmissible as the applicant had failed to substantiate that there had been a procedural error or a deviation from the case-law of the Federal Social Court. In particular, he had failed to demonstrate that the judgment dismissing his action was based on the (undue) length of the proceedings. In any event, the applicant could lodge an application under Article 34 of the Convention with the European Court of Human Rights, whereby he could obtain compensation.

47. On 3 September 2004 the decision of the Federal Social Court was served on the applicant's representative.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Social Courts Act

48. Section 109 of the Social Courts Act, in the version in force at the relevant time, reads as follows:

“(1) On request by ... the person entitled to benefits ..., a particular physician has to be heard as an expert. The hearing of this expert may be made dependant on the person who is making the request advancing the costs and, unless the court decides otherwise, the person making the request bearing the costs in the end.

(2) The court may reject a request if its admission would delay the settlement of the legal dispute and if the court is convinced that the request was submitted in an attempt to delay the proceedings or was not submitted earlier due to gross negligence.”

49. In view of the requirements of § 2 of this provision, domestic courts in practice rarely reject a request to hear another expert.

B. The Victims Compensation Act

50. The relevant part of section 1 § 1 of the Victims Compensation Act, in its version in force at the relevant time, reads as follows:

“(1) A person who ... has sustained damage to his health attributable to an intentional and unlawful attack upon himself ... shall, on application, be granted benefits in accordance with the provisions of the Federal War Victims Relief Act in respect of resulting health impairments and financial loss.“

THE LAW

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

51. The applicant complained that the length of the proceedings before the Social Courts concerning his pension claim 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...”

52. The Government left open whether the length of the proceedings complied with the “reasonable time” requirement under Article 6.
They argued that the proceedings at issue had been complex because it had been necessary to obtain neurological and surgical expert advice.
The applicant had delayed the proceedings for one year and four months by belatedly submitting his reasons for appeal. Moreover, the period of some three years it had taken to obtain the three expert reports requested by the applicant under section 109 of the Social Courts Act could not be attributed to the courts, which could only refuse to take expert evidence under that provision if they were convinced that the applicant attempted to delay the proceedings. The subject-matter of the proceedings had also not called for particular diligence. The Government conceded, however, that there was no convincing explanation for certain delays, in particular, for those caused by the Social Court of Appeal by sending the original files to the Social Court for questions concerning costs when the proceedings were still pending before the appeal court.

53. The period to be taken into consideration began on 17 October 1990 when the applicant brought his action in the Social Court and ended on
3 September 2004 when the decision of the Federal Social Court was served on his counsel. The proceedings thus lasted more than thirteen years and ten months for three levels of jurisdiction.

A. Admissibility

54. The Court notes that the proceedings at issue for payment of an additional pension under the Victims Compensation Act concern the determination of the applicant's “civil rights” within the meaning of Article 6 § 1, which is therefore applicable (see, in particular, Glüsen v. Germany, no. 1679/03, §§ 60-62, 10 January 2008). The applicant also exhausted domestic remedies as, in particular, a complaint to the Federal Constitutional Court would not have been a remedy capable of affording him adequate redress for the length of the civil proceedings brought by him (see Sürmeli v. Germany [GC], no. 75529/01, §§ 103-108, ECHR 2006‑..., and Herbst v. Germany, no. 20027/02, §§ 63-66 and 68, 11 January 2007). His complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

55. 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).

56. 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).

57. 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. It notes, in particular, that the proceedings, which were of some complexity and necessitated the consultation of medical experts, were pending before the Social Court for some seven years and before the Social Court of Appeal for some six years and seven months. It considers that the applicant delayed the proceedings in that he did not submit reasons for his appeal until July 1999 after having consulted the case-file in February 1998. Moreover, his requests for consultation of three additional medical experts under section 109 of the Social Courts Act (see paragraphs 18, 20 and 35 above) contributed to the length of the proceedings. However, the fact that the applicant availed himself of the possibility to request the consultation of further experts under the said provision does not warrant the conclusion that the time elapsed for obtaining these reports will be attributed only to him. The courts remained under a duty to obtain the necessary expert advice in an efficient and speedy manner, a duty which they did not comply with in the present case. The Court further reiterates in that connection that a legal provision which provides for the possibility to request a further expert opinion even though the expert advice considered necessary by the court to take its decision has already been obtained will contribute, as in the present case, to the length of the proceedings (see, mutatis mutandis, Glüsen, cited above, § 83). The said provision also does not exempt the domestic courts from the obligation to ensure compliance with the “reasonable time” requirement (see, inter alia, Vaas v. Germany, no. 20271/05, § 68,
26 March 2009).

58. Furthermore, the Court observes that in the proceedings the applicant's claims for a pension for loss of his earning capacity following an attack on him was at stake, which must be considered as involving an issue of importance for him. However, it also notes that the Social Courts decided on his first claim for a higher pension already in 1988 and that he received a payment of pension arrears in 1997.

59. 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. THE APPLICANT'S REMAINING COMPLAINT

60. The applicant further claimed that the proceedings had not been fair in that the Social Court of Appeal had arbitrarily dismissed his claim of bias against expert L., whose report the applicant had received only fourteen days before lodging the request, as having been lodged out of time and had thus failed to hear his arguments on the merits of the request.

61. The Court has examined the applicant's remaining complaint, which falls to be examined under Article 6, as submitted by him. However, having regard to all material in its possession, the Court finds that the applicant did not exhaust domestic remedies in this respect because, in any event, he failed to obtain a decision by the Federal Constitutional Court.

62. It follows that the remainder of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

63. 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

64. The applicant claimed EUR 15,000 in respect of non-pecuniary damage. He argued that he had suffered and his health had deteriorated because of the length of the proceedings.

65. The Government left the matter to the Court's discretion, but considered the applicant's claim to be excessive.

66. The Court considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 9,800 under that head, plus any tax that may be chargeable.

B. Costs and expenses

67. The applicant also claimed EUR 3,954.39 for the costs and expenses incurred before the domestic courts. These included costs for a medical examination by an expert, train, taxi and hotel costs to visit experts and further costs for expert evidence taken in the proceedings.

68. Submitting documentary evidence, the applicant further claimed EUR 2,887.94 for the costs and expenses incurred before the Court.
These included EUR 384.60 for costs for photocopying the case-file,
EUR 54,20 for taxi costs to meet with his counsel and EUR 2,449.14 (including VAT) for counsel's fees, which, as had been agreed upon between counsel and an association for the protection of victims of offences (Weisser Ring e.V.) as a condition for counsel to represent the applicant, were borne by the said association.

69. The Government contested these claims for lack of a causal connection between these costs and the duration of the proceedings.

70. 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 rejects the claim for costs and expenses in the domestic proceedings as it does not discern any causal link between the violation found and the specific costs claimed. As to counsel's fees, the Court notes that the applicant was not, in the event, liable to pay them and did not pay them (see, mutatis mutandis, Dudgeon v. the United Kingdom (Article 50), 24 February 1983, §§ 21-22, Series A no. 59) and they were thus not actually incurred by him. As to the further costs and expenses claimed by the applicant, the Court considers that they were actually incurred and considers it reasonable to award the applicant
EUR 200 in this respect, plus any tax that may be chargeable to him.

C. Default interest

71. 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 complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

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 9,800 (nine thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 200 (two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 25 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen PhillipsKarel Jungwiert
Deputy RegistrarPresident

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