FIFTH SECTION
DECISION
Application no. 23056/09
Tomasz MIANOWICZ against Germany
and 10 other applications
(see list appended)
The European Court of Human Rights (Fifth Section), sitting on 10 July 2012 as a Committee composed of:
Boštjan M. Zupančič, President,
Mark Villiger,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above applications lodged on the dates tabulated below,
Having regard to the comments submitted by the parties,
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 Governments of Poland and Serbia whose national are some of the applicants do not wish to intervene in the respective cases as a third party,
Having deliberated, decides as follows:
THE FACTS
The applicants are nine natural persons whose particulars are specified in the Appendix.
The German Government (“the Government”) are represented by their Agents, Ms A. Wittling-Vogel, Ministerialdirigentin, Mr H.‑ J. Behrens, Ministerialrat and Ms K. Behr, Regierungsdirektorin, of the Federal Ministry of Justice.
The facts of the cases, as submitted by the parties, may be summarised as follows.
A. The circumstances of the cases
All applications concern the length of civil or criminal proceedings in which the applicants were involved, ranging from over 3 years for one level of jurisdiction to almost 18 years for four levels of jurisdiction.
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 Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) was published in the Federal Law Gazette and had entered into force on 3 December 2011.
In December 2011 the Court informed the applicants in the present case of the enactment of the new domestic remedy and made the applicants aware of the interim provision of that Remedy Act. Referring to the case Brusco v. Italy ((dec.), no. 69789/01, ECHR 2001‑IX) the Court invited the applicants to inform the Court whether they intended to make use of the new remedy within the time limit set by the transitional provision of that Act.
Seven applicants informed the Court in response that they did not intend to make use of the new remedy, two applicants left open whether they would make use of the new remedy.
B. Relevant domestic law
A description of the relevant domestic law can be found in the decisions Taron v. Germany (dec.), no. 53126/07, §§ 18-29, 29 May 2012 and Garcia Cancio v. Germany (dec.), no. 19488/09, §§ 26 -38, 29 May 2012.
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention about the length of the proceedings before the domestic courts. Some applicants also complained under Article 13 of the Convention about a lack of an effective remedy in that regard.
Additionally, some applicants raised various other complaints in respect of the same set of proceedings.
THE LAW
Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.
A. Complaints under Article 6 § 1 concerning the length of proceedings
The applicants complained about the length of the civil or the criminal proceedings under Article 6 § 1 of the Convention. This provision provides as follows:
“In the determination of /his civil rights and obligations or of/ ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court held in Taron v. Germany ((dec.), no. 53126/07, §§ 40 et seq., 29 May 2012) – a case that involved an applicant who like the present applicants did not intend to make use of the new domestic remedy – that
“40. (...), 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. It is true that domestic courts have not been able to establish any practice in the few months since its entry into force. However, the Court does not see at this stage 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 not offer reasonable prospects of success. The mere doubts about the capacity of the new remedy to provide adequate compensation cannot alter the Court’s conclusion.
41. The Court further reiterates that the States enjoy some margin of appreciation as to the manner of providing a domestic remedy in respect of the “reasonable time” requirement (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 188- 189, ECHR 2006‑V, Fakhretdinov and others v. Russia, cited above and Žunič v. Slovenia (dec.), no. 24342/04, 18 October 2007). Therefore, the Court does not find it appropriate to examine at the present stage every single provision of the Remedy Act in abstracto when it has no reason to assume that the Remedy Act will not attain the purposes for which it had been enacted.
42. Finally, the Court does not lose sight of the fact that the new remedy only became available after the introduction of the present application and that only exceptional circumstances may compel the applicant to avail himself of such a remedy (see § 36 above). It observes that there have been several cases concerning the length of proceedings in various countries in which such exceptional circumstances were found to exist (see Brusco v. Italy, cited above; Nogolica v. Croatia, cited above; Andrášik and Others v. Slovakia (dec.), nos. 57984/00 et al., ECHR 2002-IX; Michalak v. Poland (dec.), no. 24549/03, §§ 41-43, 1 March 2005; and Korenjak v. Slovenia, no. 463/03, §§ 63-71, 15 May 2007, Fakhretdinov and others v. Russia, cited above. The Court stresses that the nature of the remedy and the context in which it was introduced weighs heavily in its assessment of such exceptions (see Scordino (no. 1), cited above, § 144).
43. As in the cases mentioned above, the Court considers it appropriate and justified in the circumstances of the present cases to require the applicant to use the new domestic remedy introduced by the Remedy Act. Firstly, as it observed in Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI, the right to a hearing within a reasonable time would be less effective if there was no opportunity to submit Convention claims to a national authority first. Once a domestic compensatory remedy has been introduced, it becomes particularly important for such complaints to be considered in the first place and without delay by the national authorities, which are better placed and equipped to establish the relevant facts and to calculate monetary compensation (see, mutatis mutandis, Demopoulos and Others (dec.) [GC], cited above, § 69). Secondly, the Court attaches particular importance to the fact that the applicant is entitled to bring his claims to the domestic courts under the transitional provision of the Remedy Act which reflects the intention of the German legislator to grant redress at the domestic level to those people who had already applied to the Court before the entry into force of the Remedy Act (compare Brusco, cited above).
It reiterates that its task, as defined by Article 19 of the Convention, would neither be best achieved by taking such cases to judgment in the place of domestic courts, nor by considering them in parallel with the domestic proceedings (see, mutatis mutandis, E.G. v. Poland (dec.), no. 50425/99, § 27, 23 September 2008). In addition, the Court finds it not excessive to refer the applicant to the domestic courts, as the Remedy Act provides only for proceedings in two instances.
44. For reasons of fairness and effectiveness the Court sees no necessity for treating pending cases with this Court differently and to require only applicants of cases lodged after the pilot judgment (Rumpf, cited above) to make use of the new remedy. After the judgment in Sürmeli v. Germany ([GC], no. 75529/01, ECHR 2006‑VII on 8 June 2006) it had become clear that the existing legal provisions in Germany were insufficient to expedite proceedings and to compensate for protracted proceedings. Since then the German legislator has worked on various ways to comply with the requirements of the Convention which finally resulted in the above mentioned Remedy Act.
45. However, the Court’s position may be subject to review in the future depending, in particular, 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). Furthermore, the burden of proof as to the effectiveness of the new remedy will lie in practice with the respondent Government.
46. In view of the foregoing considerations, the Court finds that the applicant is required by Article 35 § 1 of the Convention to avail himself of the new domestic remedy by pursuing domestic proceedings.”
In the present cases the Court sees no reasons to come to a different conclusion.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Complaint under Article 13 concerning the lack of an effective domestic remedy
Given that the applicants’ complaint under Article 6 has been rejected for non-exhaustion of domestic remedies, the related complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
C. Other complaints
Referring to other articles of the Convention and its Protocols, the applicants complained of further aspects related to the above proceedings.
Having regard to all the materials in its possession, and in so far 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
Decides to join the applications;
Declares the applications inadmissible.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
23056/09
22/04/2009
partial decision Mianowicz v. Germany (dec.) no. 23056/09, 22 April 2009
Tomasz MIANOWICZ
07/09/1955
München
Polish
Thomas GERTNER
40019/09
10078/10
16405/10
23/07/2009
10/02/2010
15/03/2010
Irena PÖRSCHMANN
21/03/1956
Praha
German
Ingo-Jens TEGEBAUER
43514/09
06/08/2009
Dusanka ANDRIC
06/05/1964
Rheda
Serbian
Predrag SAVIĆ
60577/09
09/11/2009
Alfred GÜNTHER
29/08/1943
Heiden
German
Jürgen LANGHALS
65945/09
03/12/2009
Erika HESSE
18/07/1950
Nossen
German
Jürgen LANGHALS
3892/10
18/01/2010
Hans-Ulrich BITTIGHOFER
12/07/1958
Karlsruhe
German
Andreas M. BITTIGHOFER
17570/10
22/03/2010
Karl-Heinz KIENZLE
08/10/1962
Aurach
German
–
18329/10
24/03/2010
Erika RANK
15/09/1952
Freiburg
German
Jürgen LANGHALS
20505/10
13/04/2010
Tobias Christoph HUCH
10/08/1981
Mainz
German
Arthur WALDENBERGER
Full & Egal Universal Law Academy