FIFTH SECTION
DECISION
Application no. 39644/03
by Walter KRÄCHAN
against Germany
The European Court of Human Rights (Fifth Section), sitting on 27 November 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the formal declarations accepting a friendly settlement of the case.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Walter Krächan, is a German national who was born in 1952 and lives in Tholey.
The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a German tax officer (civil servant). On 1 August 1981 he became tax inspector (Steuerinspektor) in the upper grade of the civil service (gehobener Dienst) for the Saarland Financial Administration.
On 1 April 1988 he was promoted to senior tax inspector (Steueroberinspektor).
For the period from 1 May 1985 to 31 January 1988 he obtained the grade “good” in his appraisal (dienstliche Beurteilung), yet for the period from 1 February 1988 to 31 January 1991 only the grade “satisfactory”.
On 29 October 1991 the applicant lodged a request for the change of the latter appraisal.
On 24 January 1992 the Financial Administration rejected his request.
On 9 March 1992 the applicant lodged an objection against that decision.
On 5 June 1992 his objection was rejected.
The applicant then brought an action against the Financial Administration before the Saarland Administrative Court for a change of his appraisal.
On 30 October 1995 the Saarland Administrative Court quashed the Financial Administration’s decisions of 24 January 1992 and 5 June 1992 and held that the Financial Administration had to decide again.
Upon the Financial Administration’s appeal, the applicant’s action was rejected by the Saarland Administrative Court of Appeal on 17 September 1998.
The applicant then lodged an appeal on points of law with the Federal Administrative Court.
On 13 July 2000 that court quashed the judgment of the Saarland Administrative Court of Appeal and referred the case back to a different senate of that court.
Based on a new appraisal the applicant was promoted to chief tax inspector (Steueramtmann) on 1 October 2000.
On 30 November 2000 the Saarland Administrative Court of Appeal rejected the applicant’s action as inadmissible.
On 19 December 2002 the Federal Administrative Court rejected the applicant’s appeal on points of law. However, it did not consider the action inadmissible but rather unfounded. The applicant had to bear the entire costs of the proceedings.
On 6 November 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.
COMPLAINTS
The applicant complained under Article 6 § 1 about the length of the proceedings. He also complained that all procedural costs were imposed on him, although the Saarland Administrative Court of Appeal had twice been corrected by the Federal Administrative Court.
THE LAW
On 29 October 2007 the Court received the following declaration from the Government signed on 24 October 2007:
I, Mrs Almut Wittling-Vogel, Agent of the Government, declare that the Government of Germany offer to pay ex gratia 5,000 euros to Walter Krächan with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.
On 5 November 2007 the Court received the following declaration from the applicant’s representative, signed on 1 November 2007:
I, Ms Nora Schmidt-Kessler, legal counsel, note that the Government of Germany are prepared to pay ex gratia the sum of 5,000 euros to Walter Krächan with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Germany in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy