CASE OF VOLKMER v. GERMANY

FIFTH SECTION

CASE OF VOLKMER v. GERMANY

(Application no. 54188/07)

JUDGMENT

STRASBOURG 

30 March 2010

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

In the case of Volkmer 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. 54188/07) 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 German national, Ms Sigrid Volkmer (“the applicant”), on 19 November 2007.

2. The applicant was represented by Mr H.-J. Dohmeier, a lawyer practising in Ludwigshafen. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, Federal Ministry of Justice.

3. On 25 August 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

THE CIRCUMSTANCES OF THE CASE

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

1. Background to the case

5. On 15 June 1986 the applicant had a traffic accident with a head-on collision. Subsequently, the other party's insurance company recognised its liability to compensate her for pecuniary and non-pecuniary damage and paid her 11,539.63 German marks (DEM) (5,900.11 Euros (EUR)).
The applicant claimed further payments on the ground of permanent eye complaints and whiplash injury. The insurance company contested the existence and causality of that damage, and in particular contested that the applicant had suffered any permanent damage to her health.

2. Proceedings before the Munich Regional Court

6. On 9 February 1992 the applicant brought a claim against the insurance company for compensation for pecuniary and non-pecuniary damage as a result of the traffic accident.

7. On 27 March 1992 the Munich Regional Court held a first hearing in which it assigned the case to a single judge as it did not display any legal or factual difficulties. On the same day, the single judge ordered an expert opinion in the field of orthopaedics and appointed an orthopaedist from Munich.

8. On 30 April 1992 the applicant, referring to a medical certificate, informed the court that she was unable to travel due to illness, and asked the Regional Court to appoint an orthopaedist closer to her place of residence. After discussion on how to proceed it was decided that the originally appointed expert should examine the applicant at her place of residence.
The expert opinion was delivered in July 1993.

9. In August the expert opinion was forwarded to the parties for comments within two week. Upon request of the applicant's lawyer this time limit was extended until 29 September 1993.

10. On 30 November 1993 the court, upon request of the applicant, ordered another expert opinion regarding her eye complaints. After the applicant had in December informed the court that she continued to be unable to travel new experts were appointed on 22 February and 9 June 1994; the opinion was delivered on 21 July 1994. The court put supplementary questions to the ophthalmologist as to whether the accident had caused the applicant's eye complaints and on his diagnostic methods on 12 September 1994, 31 January, 2 May and 22 June 1995. The competent judge sitting in the case changed twice during this period.

11. On 11 January 1996 the court decided to consult the files of the applicant's social court proceedings concerning her disability pension and requested further information from the applicant, setting a time limit of three weeks. After an extension of this time limit the applicant submitted the requested information on 14 February 1996.

12. On 16 July 1996 the court ordered an expert opinion in the field of bio-mechanics on whether the accident had caused the applicant's eye complaint. After a reminder by the court of 12 February 1997 the experts delivered the opinion on 10 April 1997, a first supplementary opinion was submitted on 23 June 1997. On 25 July 1997 a hearing was set, to which the experts were summoned. The hearing on 27 October 1997 was postponed due to the experts' failure to appear. On 11 December 1997 a hearing took place and the experts made submissions. On 14 April 1998 another supplementary opinion was delivered.

3. Partial judgment and judgment on the cause of action

13. On 17 August 1998 the Munich Regional Court awarded the applicant a further DEM 10,000 (EUR 5,112.92) for non-pecuniary damage and declared that the applicant was entitled to compensation for any further damage resulting from the accident, without assessing the exact amount payable. Referring to the expert opinions, it found that the applicant's whiplash injury had healed by the end of 1986 and that her eye complaints had been caused by the accident.

14. The judgment was served on the applicant's lawyer on 1 December 1998; the appeal was filed on 30 December 1998. Because of settlement negotiations between the parties the applicant requested a two months extension of the time limit to reason her appeal until 6 April 1998.

15. On 3 December 1999 the Munich Court of Appeal upheld the judgment and referred the remainder of the claim back to the Regional Court for further consideration.

4. Further proceedings before the Munich Regional Court

16. On 20 March 2000 the Regional Court held a hearing after a new change of judge. The applicant asked for an adjournment to establish the exact amount of damages payable to her to that date. On 14 April 2000 she claimed damages in the amount of DEM 167,683.53 (EUR 85,735.23) for 380 heads of damage (Schadenspositionen).

17. On 8 May 2000 a hearing was held; a decision was postponed to allow for a friendly settlement to be reached. On 7 December 2000 the applicant informed the court that negotiations to that end had broken down.

18. At a hearing on 12 February 2001 an expert opinion concerning the applicant's inability to work was ordered. The expert opinion in occupational medicine was submitted on 21 May 2001. On 10 July 2001 the court put supplementary questions to the expert, without hearing submissions from the applicant, on the degree of her occupational disability when not taking into consideration her eye complaints.

5. Proceedings on the motions alleging bias

19. On 10 July 2001 the applicant lodged an application on grounds of bias against the expert in occupational medicine. On 19 July 2001 the expert submitted his observations. On 13 August 2001 the court was notified of a change in the applicant's counsel. On 16 August 2001 the applicant asked for the costs of the occupational medicine expert opinion to be written off. On 24 September 2001 the court declined that request. It set a hearing for 29 October 2001, without having decided on the application on grounds of bias against the expert.

20. On 9 October 2001 the applicant lodged an application on grounds of bias against the acting judge. On 13 November 2001 the judge submitted her official statement. On 28 December 2001 the Munich Regional Court rejected the application on grounds of bias against the judge.
On 17 January 2002 the applicant filed an objection. On 25 February 2002 the Munich Court of Appeal quashed the Regional Court's decision of 28 December 2001 and granted the application.

6. Further proceedings before the Munich Regional Court

21. On 11 June 2002 a newly assigned judge held a hearing and set a deadline of 27 August 2002 for the applicant to substantiate the amount of damages claimed and of 1 October 2002 for the respondent to reply.
On 3 September 2002 the applicant submitted her claim in the amount of EUR 111,889.33 covering loss of wages, additional housekeeping costs and other expenses.

22. On 21 February 2003 a hearing was held following a new change of acting judge. On 28 March 2003 the court granted the application on grounds of bias against the expert in occupational medicine and ordered a new expert opinion as to the applicant's inability to work.

23. On 1 July 2003 the expert requested several x-ray images. The court ordered the applicant to forward the images. On 4 November 2003 the applicant informed the court that she did not possess any x-ray images and that the expert should try to obtain them. The expert refused and on 16 December 2003 the court ordered the applicant to make the x-ray images available to the expert. On 13 January 2004 the applicant informed the court that the x-ray images no longer existed. The expert submitted his opinion on 11 March 2004.

24. On 2 July 2004 a hearing was held, after the applicant had objected to written procedure. On 16 July 2004, upon both parties' request, the court ordered a neuro-ophthalmologist's expert opinion concerning the applicant's inability to work. The expert opinion was submitted on 3 December 2004.

25. On 25 February 2005 supplementary questions were put to the expert, which he answered on 4 April 2005. After a two week extension of the time limit for filing observations, on 2 June 2005 the applicant asked for supplementary questions to be put to the expert. After a dispute regarding the admissibility of one of these questions, on 8 August 2005 a date for an oral hearing was set for 16 September 2005. In this hearing the neuro‑ophthalmologist was heard; the applicant asked for a new expert opinion with respect to her inability to work as an administrative officer.

26. On 30 September 2005 the court ordered a new neuro‑ophthalmologist's expert opinion. The files were forwarded to the expert on 25 October 2005. In January 2006 the Regional Court contacted the expert who informed the court that he planned to examine the applicant in February. On 21 July 2006 the court sent a reminder to the expert. On 4 August and 12 October 2006 the applicant inquired whether the expert had submitted his opinion and asked the court to set a deadline for the expert. On 3 November 2006 the respondent suggested that a deadline be set for the expert. On 7 and 15 November 2006 the applicant asked whether a deadline had been set and reminded the court of its obligation to expedite proceedings. On 21 November 2006 the expert informed the court that he would submit his opinion by the end of November. It was submitted by fax on 4 December 2006.

27. On 1 February 2007 supplementary questions were put to the expert. On 14 March 2007 the files were sent to the expert, after both parties had made the required advance payment for the expert fees.
On 12 April, 2 and 17 July 2007 the applicant asked whether the expert had submitted his supplementary opinion. On 12 July 2007 the expert informed the court that the supplement would be submitted within two weeks.
On 24 August 2007 the respondent asked whether the supplementary expert opinion had been submitted. On 4 September 2009 the court set a deadline on pain of a fine for the expert to submit the supplement by 20 September 2007 which he did. On 12 November 2007 the court extended the deadline for the respondent to submit its observations on the supplementary expert opinion until 20 November 2007. On 21 December 2007 a hearing was held.

28. In its judgment of 30 January 2008, served on applicant's counsel on 11 February 2008, the Munich Regional Court awarded the applicant further compensation for pecuniary damage in the amount of EUR 19,883.69 plus interest and dismissed the remainder of her claim.

7. Appeal proceedings before the Munich Court of Appeal

29. On 4 March 2008 the applicant filed an appeal, which she reasoned on 7 May 2008 after an extension of the statutory time limit.
On 17 September 2008 the Court of Appeal advised the parties that it intended to dismiss the appeal by unanimous decision without holding a hearing.

30. On 25 February 2009 the Munich Court of Appeal dismissed the applicant's appeal but decided that no costs shall arise for two of the expert opinions. This decision was served on the applicant's lawyer on 27 February 2009. On 11 March 2009 the applicant filed an appeal alleging a violation of the right to be heard.

31. On 20 March 2009, served on the applicant's lawyer on 25 March 2009, the Court of Appeal dismissed the applicant's appeal for the right to be heard and imposed a fee of 50.00 Euros (EUR).

32. On 21 April 2009 the applicant submitted a constitutional complaint (file no. 2 BvR 906/09). On 18 January 2010, served on the applicant's lawyer on 17 February 2010, the Federal Constitutional Court quashed the Munich Court of Appeal's decision of 25 February 2009 as far as it concerned the dismissal of the applicant's appeal and remitted the case to the Nuremburg Court of Appeal.

8. Proceedings on the applications on grounds of bias

33. On 8 October 2008 the applicant lodged an application on grounds of bias against the presiding judge which was dismissed on 11 November 2008. On 21 November 2008 the applicant filed an appeal alleging a violation of the right to be heard, which was dismissed on 18 February 2009.

34. On 18 November 2008 the applicant filed a new application on grounds of bias against the presiding judge and another judge.
On 4 December 2008 and 27 December 2008 she filed further applications on grounds of bias. On 17 February 2009 the Court of Appeal dismissed these applications. On 27 February 2009 the applicant filed an appeal alleging a violation of the right to be heard which was dismissed on 14 May 2009.

35. In the brief of 27 February 2009 and on 8 April 2009 the applicant also filed further applications on grounds of bias, which were dismissed on 11 May 2009. The applicant's appeal for the right to be heard against this decision was dismissed on 24 June 2009.

36. On 29 July 2009 the applicant submitted a constitutional complaint.

THE LAW

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

37. 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...”

38. The Government did not contest this argument but claimed that a period of at least some two years must be attributed to the applicant in view of her conduct.

39. The period to be taken into consideration began on 9 February 1992 when the applicant brought the action. Since the proceedings are still pending after the Federal Constitutional Court in a decision dated 18 January 2010 quashed the Munich Court of Appeal's decision to dismiss the applicant's appeal and remitted the case to the Nuremburg Court of Appeal they have thus so far lasted some 18 years for three levels of jurisdiction.

A. Admissibility

40. 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

41. 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).

42. 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).

43. 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.
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.

44. There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

45. Further, the applicant complained that she had not had an effective remedy at her disposal to complain about the length of the proceedings in the Munich Regional Court. She alleged a violation of Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

46. The Government did not contest that argument. They submitted that the legislative procedure to introduce an effective remedy within the meaning of Article 13 of the Convention and in compliance with the Court's judgment in the case of Sürmeli could not be concluded yet.

47. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

48. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). In the present case, having regard to its conclusion with regard to the excessive length of the proceedings, the Court considers that the applicant had an arguable claim of a violation of Article 6 § 1.

49. The Court reiterates that according to its recent case-law there is no effective remedy under German law capable of affording redress for the unreasonable length of civil proceedings (see Sürmeli v. Germany [GC], no. 75529/01, §§ 103-108, ECHR 2006-VII).

50. Accordingly, the applicant did not have an effective remedy within the meaning of Article 13 of the Convention which could have expedited the proceedings in the Munich Regional Court or provided adequate redress for delays that had already occurred.

51. There has therefore been a violation of Article 13 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

52. 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

53. The applicant claimed just satisfaction in respect of non-pecuniary damage and left the amount to be awarded to the Court's discretion.

54. The Government also left the matter to the Court's discretion.

55. The Court considers that the applicant must have sustained non‑pecuniary damage as a result of the excessive length of the proceedings which is not sufficiently compensated by the finding of a violation.
Ruling on an equitable basis and having regard to the nature of the Convention violations it has found, it awards her EUR 20,000.00 (twenty thousand euros) under that head.

B. Costs and expenses

56. The applicant also claimed EUR 4,000.00 for costs and expenses incurred before the domestic courts, and, relying partly on documents, EUR 3,188.59 in legal fees and expenses incurred before the Court as well as not specified translation costs.

57. The Government found the claim of EUR 188.59 for expenses incurred before the Court reasonable but contested the remaining claims.

58. 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 and considers it reasonable to award the sum of EUR 3.188.59 for the proceedings before the Court.

C. Default interest

59. 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 that there has been a violation of Article 13 of the Convention;

4. Holds

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

(i) EUR 20,000.00 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,188.59 (three thousand one hundred eighty-eight euros and fifty-nine cents), plus any tax that may be chargeable, 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;

5. 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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