The European Commission of Human Rights sitting in private on
5 May 1986 the following members being present:
MM C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
M.A. TRIANTAFYLLIDES
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (Art. 25);
Having regard to the application introduced on 23 November 1984 by
R.D. against the Federal Republic of Germany and registered on
31 January 1985 under file No. 11369/85;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1916 and living in
Lindan-Bodolz. He is represented by Messrs. Schroth, Kiesinger a.o.,
lawyers in Karlsruhe.
I. The previous application No. 9320/81
The applicant has lodged a previous application (No. 9320/81) which
was rejected on 15 March 1984 as being manifestly ill-founded as the
applicant had concluded in domestic proceedings a friendly settlement
with the Federal Republic of Germany and the Commission therefore
considered he could no longer claim to be a victim of the alleged
violations. The applicant had complained of alleged unfairness and of
the length of civil proceedings instituted by him against the Federal
Republic of Germany and nine further defendants. He also complained of
a violation of Article 8 of the Convention (Art. 8) alleging illegal
interferences by public officials with his private company. He
further invoked Article 10 of the Convention (Art. 10) and Article 1
of the First Protocol (P1-1) alleging that he had been economically
dependent on public authorities and therefore could not freely express
his opinion about certain actions of public officials affecting his
private company and eventually causing its bankruptcy. Finally he
invoked Article 14 of the Convention (Art. 14). The previous
application was based on the following facts: The applicant was the
owner of an important company specialised in the production of long
lasting bread. The company's main customer was the Federal Army. The
orders were made by the Federal Supply Office (Bundesamt für
Wehrtechnik und Beschaffung) of the Federal Defence Ministry. In 1962
difficulties arose in the relations between the applicant and the
Federal Defence Ministry. Bread deliveries were refused or accepted
with delays on the grounds that they did not correspond to the samples
or were defective and that the production plants were not in
conformity with hygienic standards. The applicant considered the
objections to be unjustified and arbitrary. In 1972 his company went
bankrupt. In 1974 bankruptcy proceedings were discontinued in default
of bankruptcy assets.
In March 1973 the applicant lodged an action against the Federal
Republic and some public officials requesting damages in the amount of
more than 19 million DM. As legal aid was refused he reduced his
claim to DM 160,000. On 8 January 1976 the Koblenz Regional Court
(Landgericht) dismissed the action. On 7 March 1979 the Koblenz Court
of Appeal (Oberlandesgericht), having granted legal aid concerning
claims amounting to DM 25,000, rejected the applicant's appeal against
the judgment of 8 January 1976. On 12 January 1981 the Federal Court
(Bundesgerichtshof) quashed the appellate court's decision as far as
it concerned claims amounting to DM 129,000 and to that extent sent
the case back to that court.
Previously on 2 January 1981 the Federal Constitutional Court
(Bundesverfassungsgericht) had dismissed a constitutional complaint
lodged by the applicant.
On 26 January 1981 the applicant introduced his previous application
with the Commission. On 7 May 1982 the Commission decided to
communicate that application to the respondent Government for
observations on its admissibility and merits.
In the meantime, on 23 May 1981, the applicant extended his claims to
DM 10,966,644 in the domestic proceedings pending before the Koblenz
Court of Appeal. After a number of oral hearings, the taking of
evidence and challenges of judges the parties concluded the following
friendly settlement in court on 25 March 1983:
"Settlement
I. In compensation for all of the applicant's claims arising out of
the facts on which his action and the pleadings by which he extended
his action are based, the defendant pays to the plaintiff a sum of
DM 2,4 million (DM 2,400,000). This sum is composed of the following
items in dispute:
........
(List of the different amounts relating to that part of the
applicant's action which had been remitted by the Federal Court to the
Koblenz Court of Appeal.)
II. For this amount interest of 9.5% is paid with effect from
1 January 1976. In order to satisfy all the interest claims of the
applicant for the period up to 31 December 1975 the defendant pays a
lump sum of DM 320,000.
III. (This item provided that payment was to be made on a special
account of applicant's counsel who acted as trustee and had to pay off
certain creditors.)
IV. Possible claims of the plaintiff which may arise out of
Application No. 9320/81 before the European Commission of Human Rights
in Strasbourg are not affected by this settlement.
V. The costs of the proceedings and the settlement are set off
against each other (gegeneinander aufgehoben).
The total sum of DM 4,371,000 was paid by the Federal Republic of
Germany to the applicant's lawyer on 28 March 1983.
In view of the above friendly settlement the respondent Government
argued, inter alia, in the proceedings concerning the admissibility of
the applicant's previous application that interest in the amount of
DM 1,971,100 was paid in accordance with the friendly settlement as a
compensation for the duration of the proceedings to the extent to
which the applicant's claims had been recognised in the settlement.
Had the other part of his civil action also been successful he would
have been entitled to the payment of interest in that respect as well.
However, since that part of his action had been dismissed by a final
judgment he had not suffered any damage in this respect as a result of
the length of the proceedings.
The respondent Government concluded that the applicant could no longer
claim to be a victim under Article 25 of the Convention (Art. 25) with
regard to the part of his civil action which was dismissed in 1981 and
which was the subject of Application No. 9320/81.
The applicant replied that the settlement reached on 25 March 1983 was
also the subject of his application. He recalled that any claims
which may arise out of his application had been excluded from the
settlement. He pointed out that he agreed to the settlement solely
because of his old age (67), his poor health (90% invalidity), because
the proceedings had already lasted for ten years and would have lasted
for several further years before they would have been terminated, and
since the prospects of success of his claim decreased due to
difficulties in obtaining evidence after so long a time. He contested
the Government's view that he could no longer claim to be a victim
under Article 25 of the Convention (Art. 25). He had been a victim
with regard to that part of his action where a settlement had been
reached and he still was a victim with regard to the partial dismissal
of his action by a final decision of the Federal Court. That his
action had been dismissed in this respect was due to the following
circumstances: new evidence had been obtained from the declarations
of two witnesses on 7 August 1979. However, this evidence was taken
too late since the Koblenz Court of Appeal had given its judgment on
7 July 1979. The Federal Court when examining an appeal on points of
law cannot consider newly obtained evidence. Had this court been in a
position to examine his appeal in the light of the new evidence it
would probably have remitted the case as a whole back to the Koblenz
Court of Appeal.
However, the declarations of the witnesses had been decisive for
reaching the settlement. When accepting the settlement he had to
renounce a part of his claim which has still to be substantiated. In
any event, in this respect he was also a victim of a violation of the
Convention and included this claim in his previous application.
On 15 March 1984 the Commission rejected the previous application on
the ground that the applicant was no longer a victim of the alleged
violations. It noted that in accordance with the settlement of
25 March 1983 the applicant was paid compensation of DM 2.4 million and
interest in the amount of DM 1,971,100, namely DM 320,000 up to
31 December 1977 and 9.5% interest with effect from 1 January 1976.
Taking into account that the legal interest rate generally was not
higher than 4% it considered that the length of the proceedings was in
fact one element of relevance for the agreement on the interest paid.
It furthermore noted that following the agreement reached on
25 March 1983 the applicant was placed in a better position as at the
time when he reduced his claim on 19 September 1975 from approximately
19 million DM to DM 160,000 or when the Federal Court remitted his
action to the Koblenz Court of Appeal in the amount of DM 129,000 on
12 January 1981.
The Commission also noted that the settlement was proposed by the
Court and accepted by the parties at a hearing which had been fixed
after the decision of 7 May 1982 to communicate the application to the
respondent Government.
It concluded that it was the practical effect of the settlement that
the applicant's claims against the defendant before the German courts
were satisfied to a great extent.
On the other hand the Commission recognised that there may be
situations in which a party to proceedings that have been protracted
beyond a reasonable time or that have been unfair might suffer
consequences which are not redressed by an ultimate decision in his
favour. In this context it had regard to the applicant's argument
that the settlement had to be seen in the light of the particular
circumstances and that difficulties of proof and the expectation that
the proceedings might still continue for a considerable time had
influenced him to accept a lower sum than he would otherwise have
obtained.
The Commission found however that the applicant did not act under
constraint when he renounced the possibility of obtaining higher
compensation and a judgment on the merits in accordance with the
guarantees of Article 6 para. 1 of the Convention (Art. 6-1).
It added that nothing had been put forward to indicate that the
applicant suffered disadvantages from the conduct of the proceedings
by the German courts which had not been covered by the settlement in
question.
In this context the Commission had had regard to the applicant's
submission that he was a victim of a violation of the Convention in so
far as his action for damages had been definitely dismissed by the
Federal Court of Justice on 30 April 1980.
It noted that the parties had expressly agreed to exempt from the
settlement any possible claims which might be derived from the present
application. On the other hand the payment provided for in the
settlement covered all of the applicant's claims arising out of the
facts on which his action for damages and the pleadings by which he
extended his action were based.
Although the amount of compensation to be paid in the settlement was
calculated solely on the basis of that part of the action which had
been remitted to the Koblenz Court of Appeal the Commission considered
that the settlement covered the applicant's action for damages as a
whole, that means the dismissed part as well as the part which had
been remitted for a new decision. In the Commission's opinion the
favourable terms of the settlement would appear to have been proposed
also in view of any defects in the proceedings and had the purpose of
terminating the long and complicated proceedings to the satisfaction
of both parties.
The Commission concluded therefore that following the settlement of
25 March 1983, the applicant no longer had any complaint under the
Convention that could be remedied by pursuing his application.
II. The present application
The applicant submits that the Commission's decision rejecting his
application, No. 9320/81, was influenced by errors and cannot be
maintained taking into account the following considerations which in
his opinion are also based on new relevant facts.
The Commission wrongly considered that the friendly settlement which
he accepted constituted an advantageous solution for him.
The contrary was true. In fact his alleged claims including interests
amounted to DM 14,708,714 while he only received DM 4,371,100, i.e.
only 29.5% of what he claimed. In addition the Commission did not
take into account that his debts amounted to 3.5 million DM plus
interest.
The rate of legal interest for claims of merchants was 5% and not, as
stated in the Commission's decision, 4%. In any event he had himself
to pay 9.7% interest to his creditors, therefore the interest rate of
9% fixed by the friendly settlement in no way repaired the damages
sustained by him.
He had been led to accept the friendly settlement because the
presiding judge of the appellate court gave him to understand that
otherwise some more years would probably elapse before a final
decision was given.
COMPLAINTS
The applicant complains that he was forced by the appellate court to
accept an unsatisfactory friendly settlement and that the Commission
nevertheless regarded this settlement as a reason no longer to
consider him as a victim of the violations alleged with his previous
application. He points out that the settlement expressly left
undecided possible claims which might arise out of his previous
application.
He argues that in obliging him to accept a settlement the appellate
court violated Article 6 of the Convention (Art. 6). This violation
had to be seen in the context of the previous violations of his right
to a fair trial, for which he had not yet received any reparation. He
considers that in these circumstances he is a victim of a continued
violation against which an effective domestic remedy was not
available, as he could not be expected to continue costly and time
wasting proceedings before German courts.
For these reasons, the Commission should reconsider his previous
application in the light of the new information submitted by him.
THE LAW
The applicant repeats his complaints raised in his Application
No. 9320/81 which the Commission has already examined and rejected. It
follows that, by virtue of Article 27 para. 1 (b) of the Convention
(Art. 27-1-b), the Commission may not deal with the present
application unless it contains "relevant new information".
The applicant considers as "relevant new information" his allegation
that the appellate court's presiding judge made him accept the
settlement in that he pointed out that the proceedings would otherwise
not be terminated in the near future. However, this complaint has in
substance already been submitted in the course of the previous
application. In his reply to the respondent Government's observations
on admissibility and merits, the applicant had in fact pointed out
that he agreed to the settlement solely:
- because of his old age;
- because of his poor health;
- because the proceedings had already lasted for ten years and would
have lasted for several further years before they would have been
terminated; and
- because the prospects of success of his claim decreased due to
difficulties in obtaining evidence after so long a time.
The applicant's present arguments do not add anything new to his prior
submissions. The Commission considered these submissions in its
decision of 15 March 1984 and expressed the view that the applicant
did not act under constraint when he renounced the possibility of
obtaining higher compensation and a judgment on the merits
(see point 2. of the Law on page 26 of the decision of 15 March 1984).
The applicant further submits with his present application that the
Commission wrongly considered the result of the settlement to be
advantageous for him. He points out in this context that the
Commission wrongly considered that the legal interest rate would have
been 4% while for a merchant it would have been 5%. In any event the
interest rate of 9% consented to him in the settlement was not at all
advantageous as he had to pay 9.7% interest himself to his creditors.
In addition he points out that by accepting the settlement he obtained
only 29.5% of what he had initially claimed and that the sum he was
eventually paid hardly covered his own debts.
However, these arguments do not reveal any relevant new facts either.
It has been stated in the Commission's decision of 15 March 1984 that
the applicant's company went bankrupt and that bankruptcy proceedings
were discontinued in 1974 in default of bankruptcy assets. It follows
therefrom that various debts remained unpaid since 1974 and before and
that in regard to these debts interests likewise had to be paid. The
Commission also knew when rejecting the previous application
that the applicant's initial claim amounted to DM 15,751,016.30, a sum
considerably higher than the amount paid to him in accordance with the
settlement. The applicant even pointed out in his observations in
reply concerning his first application that the settlement
negotiations were based on the sum initially claimed by him (see
page 20, penultimate paragraph, of the decision of 15 March 1984).
The Commission was thus aware, on 15 March 1984, of the fact that debts
still existed and that in accepting the settlement the applicant only
obtained a part of what he originally claimed. As the settlement
which the applicant accepted provided for an interest rate of 9% it is
further of no paramount importance whether the legal interest rate
would have been 4% or 5%. Consequently the applicant's further
submissions likewise do not contain any relevant new information which
would have altered the basis on which the previous decision was taken.
It follows that the application has to be rejected in accordance with
Article 27 para. 1 (b) of the Convention (Art. 27-1-b) as being
substantially the same as a matter which has already been examined by
the Commission, no relevant new information having been submitted.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)