CASE OF SINKOVEC v. GERMANY

FIFTH SECTION

CASE OF SINKOVEC v. GERMANY

(Application no. 46682/07)

JUDGMENT

STRASBOURG

30 March 2010

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

In the case of Sinkovec 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. 46682/07) 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 Slovenian national, Mr Silvester Sinkovec (“the applicant”), on 8 December 2003.

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

3. On 24 April 2008 the President of the Fifth Section decided to give notice of the application to the Government. The Federal Republic of Germany having accepted the provisional application of the provisions of Protocol 14 governing the power of three judge committees to decide on cases in which there is well-established case-law, it was decided to assign the application 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

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1942 and lives in Velenje.

5. On 18 December 2000 the applicant requested the Regional Pension Office (Landesversicherungsanstalt Niederbayern-Oberpfalz) (“the Pension Office”) to grant him a pension on account of his reduced earning capacity (Rente wegen verminderter Erwerbsfähigkeit).

6. On 9 March 2001 the Pension Office dismissed his request.

7. On 26 April 2001 the Pension Office dismissed the applicant's administrative appeal lodged on 2 April 2001.

8. On 4 July 2001 the applicant appealed to the Landshut Social Court.

9. On 2 August 2001 the Pension Office made its submissions. However, it sent the required medical records only on 5 November 2001.

10. Between 5 November 2001 and 21 March 2003 no progress was made in the proceedings.

11. In the meantime, on 17 January 2003, the applicant had applied to the Pension Office for an early old age pension for disabled persons (Altersrente für Schwerbehinderte); this was refused on 21 March 2003. Subsequently, the applicant lodged an administrative appeal against this decision. The Social Court decided to await the outcome of the administrative appeal proceedings, as the administrative authority likewise had to examine the applicant's potential occupational invalidity.
On 2 June 2003 his administrative appeal was dismissed. These proceedings were the object of application no. 847/04 (see “II. Proceedings before the Court” below).

12. In May 2004 the Social Court resumed the proceedings.

13. On 8 June 2004 the Social Court commissioned an expert report on the applicant's earning capacity. On 15 June 2004 the expert gave his report.

14. On 27 July 2004, after holding an oral hearing, the Social Court dismissed the applicant's action, as it could not be established that his earning capacity had been reduced at the time when he had made the required number of contributions to the statutory pension insurance (gesetzliche Rentenversicherung).

15. On 9 October 2004 the judgment was served on the applicant.

16. On 18 December 2004 the applicant appealed to the Bavarian Social Court of Appeal. In his appeal he informed the court for the first time that he had previously applied for a pension from the Slovenian pension authorities. On 30 December 2004 the court received the appeal and requested the Pension Office to submit its observations.
On 10 February 2005 the Pension Office requested information from the Slovenian pension authorities in respect of the applicant's former pension requests.

17. On 27 April 2005 the Pension Office received the information from the Slovenian authorities. However, they were translated only on 27 June 2005 and submitted to the court on 28 June 2005. On the same day the Pension Office requested additional information from the Slovenian pension authorities which it received on 26 July 2005.
On 26 September 2005 it translated them and submitted the information to the court on 4 October 2005.

18. On 11 October 2005 the Social Court of Appeal sent the applicant's file to the Pension Office for an examination of the question whether the criteria for the requested pension had been met on the basis of the information given by the Slovenian pension authorities.

19. On 20 December 2005 the Pension Office replied that the requirements for the requested pension had not been fulfilled.

20. On 30 December 2005 the Social Court of Appeal requested the applicant to indicate who his employers in Germany had been and what work he had done there.

21. On 4 August 2006 the court received the requested information after sending the applicant two reminders, in May and July 2006.

22. On 18 January 2007 the court requested the Pension Office to make its submissions on the information given by the applicant.

23. On 8 February 2007 the Pension Office submitted its comments.

24. On 3 April 2007 the Social Court of Appeal ordered an orthopaedic expert report. On 22 May 2007 it commissioned the expert report, which the court received on 12 June 2007. On 15 June 2007 the court requested the Pension Office to make its comments on the report.

25. On 25 June 2007 the Pension Office requested the Social Court of Appeal to transmit the case files, which the court did on 10 August 2007. On 22 November 2007 the Pension Office submitted its comments.

26. On 28 November 2007 the Social Court of Appeal forwarded these comments to the applicant.

27. On 29 January 2008, after holding an oral hearing, the Bavarian Social Court of Appeal dismissed the applicant's appeal, mainly endorsing the judgment of the Social Court.

28. On 5 March 2008 the judgment was served on the applicant.

II. PROCEEDINGS BEFORE THE COURT

29. The present case was initially registered under application no. 847/04. In his application form the applicant merely complained about the refusal of the Pension Office to grant him an early pension for disabled persons and a pension on account of his reduced earning capacity.

30. On 4 January 2006 the applicant submitted that it had been incomprehensible for him why it took the Social Court of Appeal and the Pension Office such a long time to decide his application. In his view there had been too many delays in the whole case. Due to these delays he had now been suffering for several years from a financial distress. He further maintained that he had been “cheated” for many years by the Pension Office.

31. On 6 October 2007 the Court decided to sever the proceedings in so far as they concerned the proceedings regarding a pension on account of the applicant's reduced earning capacity and to conduct them under the instant application no. 46682/07.

32. By letter of 7 November 2007 the applicant informed the court that his proceedings concerning the pension on account of his reduced earning capacity were still pending and that he was very impatient because he “has now been fighting for his rights for eight years”.

33. On 20 November 2007 the Court declared application no. 847/04 concerning the disability pension inadmissible for being manifestly ill‑founded.

THE LAW

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

34. The applicant complained that the length of the proceedings was 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...”

35. The Government acknowledged that the length of the proceedings exceeded the limits of what was deemed reasonable within the meaning of Article 6 § 1 of the Convention. However, they submitted that the applicant's complaint was inadmissible.

36. The period to be taken into consideration began on 2 April 2001 when the applicant lodged his administrative appeal with the Pension Office and ended on 5 March 2008 when the judgment of the Social Court of Appeal was served on the applicant. It thus lasted six years and eleven months at one level of compulsory administrative proceedings and two levels of jurisdiction.

A. Admissibility

37. The Government maintained that the applicant had failed to raise his complaint about the length of the proceedings in accordance with Rule 47 of the Rules of Court, as in his application form he had merely complained about the refusal to be granted the pension. The applicant's letter to the Court of 4 January 2006 had merely made reference to delays in the social court proceedings concerning the transmission of additional documents, whereas he was actually seeking compensation for the many years he had been “cheated” by the Pension Office. Furthermore, the applicant had never complained about the length of the proceedings at first instance, which should have served as the basis for the length complaint and which had ended six months before 4 January 2006. Finally, given that two different sets of proceedings had been pending simultaneously before the social courts, it could not be inferred from the applicant's letter of 4 January 2006 which social court proceedings he was referring to.

38. The Court reiterates that it examines the applications lodged before it within the meaning of Articles 33 and 34 of the Convention according to their content and their meaning. An application is lodged from the moment an applicant provides some information, even if summarily, concerning the nature of the complaint he or she wishes to raise. The Court alone is competent to decide on the characterisation to be given in law to the facts of the case by applying some degree of flexibility and by avoiding excessive formalism (see Kos v. the Czech Republic, no. 75546/01, § 29, 30 November 2004).

39. In the instant case, the Court considers that it clearly follows from the wording of the applicant's letter of 4 January 2006 that he was complaining about the length of his proceedings pending before the social courts. Moreover, it follows from the case files before the social courts that they gave simultaneous information in respect to both sets of social court proceedings. Finally, in his letter to the Court of 7 November 2007 which clearly referred to the proceedings concerning the alleged reduction of his earning capacity (still pending at that time), the applicant submitted that “he has now been fighting for his rights for eight years” (compare Kos, cited above, § 27 and § 30). The Court is therefore satisfied that the applicant made a complaint about the length of the proceedings regarding his pension on account of the reduction of his earning capacity.

40. It follows that the Government's objection in this respect must be rejected.

41. 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

42. 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).

43. It 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).

44. Having examined all the material submitted to it and considering that the Government have acknowledged that the length of the proceedings had exceeded the reasonable time requirement laid down in Article 6 § 1, the Court considers that there is no reason to reach a different conclusion in the present case. 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. OTHER ALLEGED VIOLATIONS

45. The applicant further complained about the refusal to grant him a pension for his reduced earning capacity.

46. The Court observes that the applicant failed to lodge a constitutional complaint with the Federal Constitutional Court against the impugned decisions.

47. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

48. 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

49. The applicant sought compensation for non-pecuniary damage.
In particular, he claimed 48,000 euros (EUR) for distress and frustration he and his family had experienced. Furthermore he claimed pecuniary damages amounting to EUR 44,648.64 for having been refused monthly rent payments.

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

51. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court considers that the applicant must have sustained non‑pecuniary damage in respect of the length of the proceedings. Ruling on an equitable basis, it therefore awards him EUR 5,000 under that head.

B. Costs and expenses

52. The applicant also claimed EUR 132.61 for postal charges incurred before the Court and the domestic courts. He submitted documents in support of his claim.

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

54. 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable that the sum claimed should be awarded in full.

C. Default interest

55. 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, the following amounts:

(i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage;

(ii) EUR 132.61 (one hundred and thirty-two euros and sixty‑one cents) in respect of costs and expenses;

(iii) any tax that may be chargeable to him 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 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 30 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen PhillipsKarel Jungwiert
Deputy RegistrarPresident

 

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