FIFTH SECTION
DECISION
Application no. 51314/10
Klaus HAVERMANN and Ursula HAVERMANN
against Germany
The European Court of Human Rights (Fifth Section), sitting on 22 January 2013 as a Committee composed of:
Ganna Yudkivska, President,
Angelika Nußberger,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 25 August 2010,
Having regard to the decisions in the cases of Taron v. Germany (dec.) no. 53126/07, 29 May 2012, Garcia Cancio v. Germany (dec.) no. 19488/09, 29 May 2012,
Having noted that the Government of Liechtenstein whose national is one of the applicants do not wish to intervene as a third party,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Klaus Havermann, is a German national who was born in 1939 and lives together with the second applicant, Ms Ursula Havermann, a Liechtenstein national born in 1945, in Ruggell, Liechtenstein.
A. The circumstances of the case
1. Proceedings at issue
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants were the respondents to eviction proceedings which began on 8 June 2000 at Munich District Court. The landlord later extended the claim and filed for outstanding rent as well.
4. On 16 February 2001, the court received an expert opinion concerning the concentration of noxious substances in the apartment.
5. On 22 January 2002, the court rendered a partial judgment ordering the applicants to vacate the apartment. On 24 July 2002, the Munich Regional Court dismissed the applicants’ appeal against this partial judgment.
6. On 23 October 2002, the Federal Constitutional Court refused to accept the applicants’ complaint against the two aforementioned decisions for adjudication.
7. In January 2003, the applicants challenged the District Court judge for bias and filed criminal charges against her for perversion of justice.
On 25 April 2003, the District Court rejected the challenge. The public prosecutor refused to initiate criminal proceedings. On 27 December 2004, the District Court rendered another partial judgment ordering the applicants to pay outstanding rent for the year 2000. On 8 March 2006, the Munich Regional Court dismissed both parties’ appeal and on 15 May 2006 the applicants’ request to be heard.
8. On 17 January 2008, the Munich District Court rendered a final judgment ordering the applicants to pay outstanding rent for the period of time from January 2001 until September 2002. On 5 February 2010, the Munich Regional Court dismissed the applicants’ appeal. The decision was served upon the applicants’ lawyer on 4 March 2010.
2. Subsequent developments
9. On 7 December 2011 the Government informed the Court that in response to the pilot judgment Rumpf v. Germany (no. 46344/06, 2 September 2010) an Act against Excessive Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) had been published in the Federal Law Gazette and had entered into force on 3 December 2011.
10. In December 2011 the Court informed the applicants in the present case of the enactment of the new domestic remedy.
11. The applicants informed the Court in response that they intended to make use of the remedy, but doubted that they would be able to find counsel who would represent them.
B. Relevant domestic law
Act against Excessive Court Proceedings and Criminal Investigations
12. For the general features of the Act and its interim provision see in detail see Taron v. Germany (cited above) and Garcia Cancio v. Germany (cited above).
COMPLAINTS
13. The applicants complained under Article 6 § 1 of the Convention about the length of civil court proceedings. They further complained under Article 6 of the Convention about the unfairness of these proceedings and under Article 13 of the Convention about the lack of an effective legal remedy to redress the unfairness of the proceedings; under Article 1 of Protocol No. 1 to the Convention and Article 8 of the Convention that they had been judicially ordered to vacate their rented apartment and to pay outstanding rent.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention on account of the length of the proceedings
14. The applicants complained about the length of the administrative proceedings under Article 6 § 1 of the Convention. This provision provides as follows:
“In the determination of his civil rights and obligations, everyone is entitled to a ... hearing within a reasonable time ...”
15. The Government have not submitted observation on this case.
16. The Court held in Garcia Cancio v. Germany (cited above, §§ 46 et seq.) that
“46. The Court does not see any reason to doubt the applicant’s entitlement to lodge a compensation claim with the competent domestic court pursuant to Article 23 of the Remedy Act. (... )
47. (...) the Court accepts that the Remedy Act was enacted to address the issue of excessive length of domestic proceedings in an effective and meaningful manner, taking account of the Convention requirements. At this stage, the Court does not see any reason to believe that the new remedy would not afford the applicant the opportunity to obtain adequate and sufficient compensation for his grievances or that it would offer no reasonable prospect of success.
48. The Court’s position may be subject to review in the future depending, on the domestic courts’ capacity to establish consistent case-law under the Remedy Act in line with the Convention requirements (see Korenjak, cited above, § 73).
49. Therefore, the Court finds that the applicant’s complaint is premature.”
17. In the present case the Court sees no reasons to come to a different conclusion. In particular, notwithstanding the applicants’ doubts about their ability to find a lawyer, the Court considers that the new domestic remedy was accessible to the applicants as the general provisions for legal aid under German law are applicable. The Court has repeatedly held these provisions to be compatible with the requirements of the Convention (see Taron v. Germany, cited above, § 38 and Eckardt v. Germany (dec.), no. 23947/03, 10 April 2007).
18. It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Other complaints
19. Referring to other articles of the Convention the applicants complained of further aspects related to the above proceedings.
20. Having regard to all the materials in its possession, and insofar as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the applications must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsGanna Yudkivska
Deputy RegistrarPresident
Full & Egal Universal Law Academy