FIFTH SECTION
DECISION
Application no. 38130/12
Gerhard GRÜNER
against Germany
The European Court of Human Rights (Fifth Section), sitting on 17 October 2017 as a Committee composed of:
André Potocki, President,
Angelika Nußberger,
Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 16 June 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Gerhard Grüner, is a German national who was born in 1962 and lives in Wiesbaden. He is a practising lawyer.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. Upon appeal proceedings before the Wiesbaden Regional Court, on 20 July 2011 the applicant was ordered to return his leased apartment to its lessor.
4. On 8 August 2011 the applicant lodged a request to be heard (Anhörungsrüge) against this judgment with the Regional Court.
5. On 24 August 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court (hereinafter the “Constitutional Court”) against the judgment of 20 July 2011, claiming a violation of his basic right to equality and property and alleging arbitrariness. In his constitutional complaint he mentioned that he had lodged a request to be heard.
6. On 12 September 2011 the Regional Court rejected the applicant’s request to be heard.
7. On 14 September 2011 the Constitutional Court declined to consider the applicant’s constitutional complaint without providing any reasons (no. 2 BvR 1843/11).
8. On 25 October 2011 the applicant lodged a constitutional complaint with the Constitutional Court with regard to the rejection of his request to be heard and the Wiesbaden Regional Court’s judgment of 20 July 2011 and alleged a violation of his right to be heard, while using in large parts the wording of his first constitutional complaint.
9. On 6 December 2011 the Constitutional Court declined to consider the applicant’s constitutional complaint, without providing reasons (no. 2 BvR 2280/11). At the same time it imposed a fee of EUR 1000 upon the applicant for abuse of process, relying on Article 34 § 2 of the Federal Constitutional Court Act (see paragraph 13).
10. The Constitutional Court observed that in the present complaint about the violation of his right to be heard, the applicant largely repeated the arguments which he had used in his first constitutional complaint. As the court had declined to consider the first complaint, the applicant could have reasonably assumed that a second, nearly identical complaint was devoid of any prospects of success. The Constitutional Court added that the repetition of previously submitted arguments in a new constitutional complaint placed an unacceptable strain on its work capacity.
11. On 19 December 2011, the applicant requested the Constitutional Court to reconsider its decision and to lift the abuse fine. He submitted notably that he had incorrectly assessed the Constitutional Court’s jurisprudence as regards cases in which a request to be heard had to be lodged prior to a constitutional complaint. Because his first constitutional complaint had been inadmissible for non-exhaustion, he had been obliged to lodge the second constitutional complaint.
12. On 22 December 2011 the Registry of the Constitutional Court by its presidential council (Präsidialrat) replied that the decision of 6 December 2011 was final and could no longer be challenged, nor could the imposed fee. It emphasised that decisions by which the Constitutional Court declined to consider a constitutional complaint were taken after examination of all arguments but did not need to be reasoned, according to Article 93d § 1 of the Federal Constitutional Court Act. In the present case the Constitutional Court’s chamber (Kammer) had given short reasons concerning the non‑admission of the complaint as well as the abuse fee.
B. Relevant domestic law and practice
13. Pursuant to Article 34 § 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) the proceedings before the Constitutional Court shall be free of charge. Article 34 § 2 stipulates that the Constitutional Court may charge a fee of up to EUR 2,600 if the lodging of a constitutional complaint constitutes an abuse of process. In its well‑established case-law, the Constitutional Court has consistently held that the lodging of an obviously inadmissible or unfounded complaint is considered to be abusive if one can reasonably expect the complaint to be devoid of any prospect of success, for example when constitutional complaints essentially had the same wording as, or solely repeated arguments already used in previous constitutional complaints (9 June 2004, no. 1 BvR 915/04; 5 December 2007, no. 2 BvR 2332/07; 5 October 2011, 2 BvR 1064/11; and 4 April 2012, no. 2 BvR 24/11). In this context, the Constitutional Court imposes special duties of diligence on lawyers representing applicants (or themselves) as regards the substantiation of constitutional complaints and the assessment of the admissibility criteria before lodging a constitutional complaint (29 May 1996, no. 2 BvR 725/96; 9 June 2004, no. 1 BvR 915/04; 19 February 2009, no. 2 BvR 194/09; 24 August 2010, no. 1 BvR 1584/10; and 25 January 2012, no. 1 BvR 1873/11).
14. No right as such to be informed beforehand about the Constitutional Court’s intention to impose a fee for abuse can be deduced from its constant case-law although the Constitutional Court has warned applicants not represented by a lawyer about the abusive character of their constitutional complaint before imposing a fee for abuse of process (11 May 2004, nos. 512/04 and 687/04; or 27 June 2006, no. 1135/06; in case of representation by a lawyer see 4 May 2006, no. 2 BvR 398/06; or 19 December 2006, no. 2 BvR 2357/06). It also held that fees charged in accordance with Article 34 § 2 of the Federal Constitutional Court Act had to be legally qualified as court fees, notwithstanding their also punitive character, and could be considered as an appropriate consideration for costs triggered by an abusive resort to the Constitutional Court (9 October 2008, no. 1 BvR 1356/03; 31 May 2012, no. 2 BvR 611/12; 28 October 2015, no. 2 BvR 740/15; 27 March 2017, no. 2 BvR 871/16).
COMPLAINTS
15. Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained of the Constitutional Court’s refusal to consider his constitutional complaint, its decision to impose a fee for abuse of process and the failure to inform and hear him beforehand regarding the fact that it considered the complaint to be abusive. He submitted that in view of the Constitutional Court’s case-law regarding the necessity to lodge a request to be heard he was obliged to lodge a new constitutional complaint. The unpredictable and arbitrary imposition of abuse fines would appear to depend on the judge rapporteur’s mood and would hinder the applicants from lodging a new constitutional complaint with the Constitutional Court or an application with the European Court of Human Rights. The applicant also relied on Articles 7 and 8 of the Convention and his freedom of profession.
THE LAW
16. The applicant complained that his rights under the Convention had been violated on the ground that the Constitutional Court imposed a fee for abuse of process when dismissing his constitutional complaint. He mainly relied on Articles 6 (access and unfairness) and 13 of the Convention, but also on Articles 7 and 8 (private life) of the Convention and his freedom of profession.
17. The Court considers that the applicant’s complaints raise an issue with respect to his right of access to court and his right to a fair trial (Matterne v. Germany (dec.), no. 4041/06, 13 October 2009) and therefore fall to be examined under Article 6 of the Convention, which reads, so far as relevant in the present case, as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal (...)
18. The Court reiterates that various limitations, including financial ones, may be placed on the individual’s access to a “court” or “tribunal”. In particular, the imposition of a fine in order to prevent claimants from addressing a court without real necessity or in an abusive manner, has the legitimate aim of ensuring the proper administration of justice and is not, as such, in conflict with Article 6 § 1 of the Convention, unless the related decision itself amounts to arbitrariness or the amount of the fee imposed is so high as to constitute a real impediment restricting access to a court (see Maillard v. France, no. 35009/02, § 35, 6 December 2005; Toykasi and Others v. Turkey (dec.), nos. 43569/08 and others, 20 October 2010; and Krikorian v. France (dec.), no. 6459/07, § 103, 26 November 2013).
19. The Court notes at the outset that the abuse fee imposed by the Constitutional Court does not constitute a court fee imposed at the initial stage of the proceedings (see in comparison Jedamski and Jedamska v. Poland, no. 73547/01, § 66, 26 July 2005). The Constitutional Court conducted the constitutional proceedings irrespective of the payment of any fees (see Matterne, cited above, and, in contrario, Kreuz v. Poland, no. 28249/95, § 66, ECHR 2001‑VI) and the applicant obtained a final decision by the Constitutional Court, which declined to consider his constitutional complaint and established the grounds which justified its finding that the pursuance of the complaint constituted an abuse of process.
20. The Court further observes that the applicant was a practising lawyer and thus in a position to be aware of the Constitutional Court’s well‑established case-law regarding abuse fees and of his special duties of diligence as a lawyer (see paragraph 13). In so far as the applicant claimed that the Constitutional Court erroneously held that he had only repeated his previous constitutional complaint and had not taken into account that he had been obliged to lodge a new constitutional complaint, the Court reiterates that it is not its task to assess whether the complaint lodged by the applicant was abusive or not (compare Maillard, cited above, § 36). As regards the fact that the Constitutional Court imposed the fee for abuse of process without informing the applicant of its intention to do so prior to its decision, the Court notes that Article 34 § 2 of the Federal Constitutional Court Act stipulates only that the Constitutional Court may charge a fee of up to EUR 2,600 if the lodging of a constitutional complaint constitutes an abuse of process, without providing for the procedural requirements for such a decision. Furthermore, nothing indicates that the Constitutional Court, as a general rule, notifies lawyers representing applicants or themselves if their application might risk being qualified as abusive (see paragraph 14). In view of the imposed fee’s specific nature which, according to the Constitutional Court’s case-law, constitutes an appropriate consideration for the costs triggered by an abusive resort to the Constitutional Court, notwithstanding its punitive character (ibid.), and its close link to the entire litigation before the Constitutional Court (compare Poilly v. France (dec.), no. 68155/01, 15 October 2002), the Court cannot conclude that the proceedings have been arbitrary or unfair.
21. Finally, with regard to the amount of the fee imposed, it cannot be said that it reduced or restricted the applicant’s access to the Constitutional Court to such an extent that the very essence of his right was or will be impaired in future (compare Poilly, Maillard, § 37 and Krikorian, § 104, all cited above).
22. The Court therefore holds that the complaints are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 November 2017.
Anne-Marie DouginAndré Potocki
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy