FIFTH SECTION
CASE OF VON KOESTER v. GERMANY
(Application no. 17019/08)
JUDGMENT
STRASBOURG
22 September 2011
This judgment is final but it may be subject to editorial revision.
In the case of von Koester v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Boštjan M. Zupančič, President,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 30 August 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 17019/08) 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, Mr Hans-Georg von Koester (“the applicant”), on 21 September 2007.
2. The applicant was represented by Mr H.-K. von Koester, a lawyer practising in Wiesbaden. The German Government (“the Government”) were represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.
3. On 24 November 2009 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings to the Government. In accordance with Protocol 14, the application was assigned to a Committee of three Judges.
4. The applicant and the Government each filed observations on the merits (Rule 59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1922 and lives in Bonn.
6. On 17 April 1989 the applicant brought civil proceedings before the Wiesbaden Regional Court against the former tenant of his business premises, claiming, inter alia, payment of outstanding rent. Until October 1989 he extended or amended the action four times.
7. After an oral hearing on 11 October 1989 the Regional Court partly found for the applicant on 29 November 1989 by way of a default judgment (Versäumnis-Teilurteil).
8. On 21 February 1990 the applicant again extended his claim. By final judgment of 28 March 1990 (Schlussurteil) the Regional Court partly found for the applicant and dismissed his remaining claims. On 23 July 1990 the judgment was served on the applicant.
9. Both parties appealed against the judgment. On 24 September 1990 the applicant submitted his grounds of appeal and again extended his action. Upon his requests he was granted two further extensions of time-limits of one month respectively. On 29 April 1991 the applicant again extended his claims.
10. On 18 March 1992, after an oral hearing on 26 February 1992, the Frankfurt a.M. Court of Appeal commissioned two expert reports which were delivered on 10 February 1993 and on 9 June 1993. After an extension of the time-limit of one week the applicant on 6 October 1993 submitted objections to one of the reports.
11. On 13 April 1994 the Court of Appeal gave a partial judgment on provisional enforceability.
12. On 4 October 1994 the Court of Appeal commissioned a further expert report which was delivered on 24 February 1996, after the court had enquired about the report five times. After an extension of the time-limit of two weeks the applicant submitted objections to the report.
13. On 26 March 1997 the Court of Appeal held an oral hearing, heard one expert and the applicant lodged an auxiliary request. On 25 June 1997 the Court of Appeal partly quashed the Regional Court’s judgment.
14. On 7 August 1997 the applicant lodged an appeal on points of law. Upon his request he was granted an extension of three months of the time-limit for submitting his grounds of appeal.
15. On 9 February 2000 the Federal Court of Justice partly quashed the judgment of the Court of Appeal and insofar remitted the case.
16. On 24 January 2001 the Court of Appeal held an oral hearing and on 21 March 2001 gave its judgment. In April 2001 the applicant lodged a constitutional complaint against the judgment.
17. On 15 January 2003 the Hessen Constitutional Court quashed the Court of Appeal’s judgment and remitted the case, finding that the applicant’s right to be heard had been violated.
18. On 7 May 2003 the Court of Appeal held an oral hearing and heard an expert. On 28 May 2003 it commissioned a supplemental expert report and ordered the applicant to pay advance costs of EUR 2,000 for the expert. On 13 June 2003 the applicant objected to the amount. On 16 June 2003 and 7 July 2003 the Court of Appeal enquired about the payment of the costs.
19. After having been informed by the defendant in September 2003 that the parties were negotiating on a settlement of the dispute, the Court of Appeal until May 2004 enquired four times about the state of affairs but received no answers.
20. Between June 2004 and June 2005 the applicant submitted several appeals against cost orders.
21. Between February 2005 and October 2005 the applicant submitted three motions for bias, all of which were dismissed.
22. On 21 September 2005 the Court of Appeal held an oral hearing and on 26 October 2005 it issued an order for the taking of evidence.
23. On 18 January 2006 another hearing was held. On 8 February 2006 the Court of Appeal issued a judgment by consent (Anerkenntnisurteil) and decided on the value in dispute and the distribution of the costs of the entire proceedings (Kostengrundentscheidung).
24. On 23 February 2006 the applicant submitted a motion for the right to be heard (Anhörungsrüge), a motion for reconsideration (Gegenvorstellung) and a fourth motion for bias. On 22 March 2006 the Court of Appeal rejected the motion for bias. On 10 April 2006 the applicant submitted a motion for the right to be heard against this decision and a fifth motion for bias. On 20 April 2006 the applicant submitted a revised and supplemented version of his submissions of 10 April 2006, which he supplemented again on 24 and 29 April 2006. On 15 May 2006 the last motion for bias was dismissed as abusive. On 2 June 2006 the applicant submitted a motion for the right to be heard against the decision of 15 May 2006. On 7 June 2006 the Court of Appeal held a hearing at which the parties did not appear. On 14 June 2006 the Court of Appeal dismissed the applicant’s motions of 23 February 2006. On 7 July 2006 the applicant submitted a motion for the right to be heard against the decision of 14 June 2006 and a sixth motion for bias. The latter was dismissed as inadmissible on 12 July 2006.
25. On 4 September 2006 the applicant lodged a constitutional complaint with the Hessen Constitutional Court in which he mainly complained about the distribution of the costs of the proceedings.
26. On 14 March 2007 the Hessen Constitutional Court ordered the applicant to pay an advance on court fees amounting to EUR 750 and informed him that it had doubts as to the admissibility of his constitutional complaint. On 21 March 2007 that decision was served on the applicant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
27. 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 ...”
28. The Government did not contest that argument but emphasized that the subject matter in particular had been factually complex. In this respect, they argued that the applicant inter alia had successively lodged numerous individual claims, that he had amended his claim several times and that three experts had to be heard. They also pointed out that the applicant’s lodging of auxiliary requests, motions for bias, numerous objections and requests for extensions of time-limits as well as unclear submissions further complicated the proceedings. Therefore, the applicant’s conduct had considerably contributed to the length of the proceedings. Finally, they conceded that the proceedings were not of minor importance for the applicant as they originally concerned claims amounting to several DEM 10,000.
29. The period to be taken into consideration began on 17 April 1989 when the applicant brought his action and ended on 21 March 2007 when the Hessen Constitutional Court’s decision was served on the applicant (see, for example, Hoffer and Annen v. Germany, nos. 397/07 and 2322/07, § 53, 13 January 2011). It thus lasted 17 years, 11 months and 7 days at four levels of jurisdiction including two remittals.
A. Admissibility
30. 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
31. 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).
32. 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).
33. 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. However, the Court agrees with the Government that the applicant’s conduct contributed to the factual complexity of the case as well as to several delays caused inter alia by numerous motions, objections and requests for extensions of time-limits (see above paragraph 28). His conduct thus contributed to the length of the proceedings. Moreover, it takes note of the financial amount at stake. 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
34. 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
35. The applicant requested compensation for pecuniary and non-pecuniary damage. He left the amount to the discretion of the Court.
36. The Government did not express an opinion on the matter.
37. The Court observes that the applicant did not submit a specified claim for pecuniary damage; 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 award him EUR 12,600 under that head.
B. Costs and expenses
38. The applicant did not submit a specified claim for costs but left the matter to the discretion of the Court.
39. The Government did not express an opinion on the matter.
40. In view of the lack of a specified claim, the Court who can not speculate on the costs and expenses of the applicant rejects the claim for costs and expenses in the domestic proceedings as well as for the proceedings before the Court.
C. Default interest
41. 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 remainder of 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, EUR 12,600 (twelve thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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 22 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy