STORCK v. GERMANY (NO. 2)

Communicated on 9 November 2015

FIFTH SECTION

Application no. 486/14
Waltraud STORCK
against Germany
lodged on 31 December 2013

STATEMENT OF FACTS

The applicant, Ms Waltraud Storck, is a German national, who was born in 1958 and lives in Hünfelden-Kirberg (Germany). She is represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case: the applicant’s first application to the Court (no. 61603/00)

(a) The domestic court proceedings at issue in application no. 61603/00

From 29 July 1977 until 5 April 1979 the applicant was placed in a closed ward of the H. clinic, a private psychiatric clinic, at her father’s request. The applicant, who was of age at the time, had not been placed under guardianship and had not signed the clinic’s admission form consenting to her treatment in the clinic. No court order had been obtained to permit her placement in a psychiatric hospital against her will. Having been diagnosed with schizophrenia, she was treated with strong medication including neuroleptics, which was administered by force on several occasions. The applicant attempted to flee from the clinic several times and was shackled in order to prevent her from absconding; she was brought back to the clinic by the police following one of her attempts to escape.

After her medical treatment in the clinic for what was thought to be schizophrenia, the applicant developed a post-poliomyelitis syndrome and is today 100 per cent disabled. Between 1980 and 1992 she was unable to speak.

The applicant subsequently stayed in further psychiatric and other hospitals. In 1994 and in 1999 two psychiatric experts commissioned by the applicant found that the applicant had at no point in time suffered from a schizophrenia-type psychosis, but had been in a puberty-related identity crisis at the relevant time.

On 9 July 1998 the Bremen Regional Court allowed the action for compensation of pecuniary and non-pecuniary damage the applicant had brought in 1997 against the H. clinic. It found that the applicant’s detention had been illegal under German law as she had neither validly consented to her detention nor had a court order authorising it been issued. Her compensation claims in tort were also not time-barred.

On 22 December 2000 the Bremen Court of Appeal quashed the Regional Court’s judgment and dismissed the applicant’s action. It considered that the applicant had not been illegally deprived of her liberty during her stay in the clinic. She did not have compensation claims in contract. She had implicitly consented to her treatment and thus concluded a contract, but her treatment had not been erroneous. Any compensation claims in tort were, in any event, time-barred.

The applicant’s appeal to the Federal Court of Justice was to no avail.

On 6 March 2002 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.

(b) The Court’s judgment in application no. 61603/00

By a judgment dated 16 June 2005, the Court found that the applicant’s placement in the H. psychiatric clinic from 1977 to 1979, against her will and without the necessary court order, and the forcible medical treatment had breached Article 5 § 1 and Article 8 of the Convention (Storck v. Germany, no. 61603/00, ECHR 2005‑V).

The Court found in relation to the applicant’s complaint under Article 5 § 1 of the Convention that the applicant, who had not consented to her stay in the clinic, had been deprived of her liberty. The Court further found that the applicant’s medical treatment against her will had interfered with her right to respect for her private life under Article 8 of the Convention.

The Court considered that the fact that the applicant was deprived of her liberty in a private clinic and her medical treatment against her will was imputable to the respondent State, in particular, because the appellate courts, in their interpretation of the provisions of civil law relating to the applicant’s compensation claims, failed to interpret these provisions in the spirit of Article 5 and Article 8 of the Convention. The respondent State’s responsibility was further based on the police’s involvement in the continuation of the applicant’s detention and, as a result, her medical treatment. As there had not been a court order, which had been necessary under domestic law for the detention and medical treatment of a person for being of unsound mind against his or her will, authorising the applicant’s confinement and treatment in the H. clinic, her detention had not been lawful under domestic law.

The Court also found that the State had failed to comply with its positive obligation to protect individuals such as the applicant against interferences with their right to liberty and to respect for their private life by private persons, in particular by exercising sufficient supervision and control over private psychiatric institutions.

As to the application of Article 41 of the Convention, the Court ordered the respondent State to pay EUR 75,000 in respect of non-pecuniary damages and EUR 18,315 in respect of costs and expenses. As regards the applicant’s claim for compensation of pecuniary damage, the Court acknowledged that her internment and medical treatment in breach of the Convention had entailed a loss of opportunities with regard to her professional career. However, the Court considered that it could neither calculate the loss of estimated earnings nor the exact amount of future pecuniary damage arising from the breaches of the Convention on the basis of the material before it.

The judgment became final on 16 September 2005.

2. The proceedings at issue in the applicant’s present application to the Court

(a) The proceedings before the Bremen Court of Appeal

On 17 October 2005 the applicant applied for legal aid with the Bremen Court of Appeal in order to bring an action for a reopening of the compensation proceedings she had brought against the H. clinic. She claimed that her action against the clinic should be retried following the Court’s judgment in her application no. 61603/00 finding breaches of Article 5 and Article 8 of the Convention. She argued that the Court’s judgment constituted a ground for retrial under Article 580 no. 7 (b) of the Code of Civil Procedure (see Relevant domestic law below), applied by analogy. She requested that the clinic should be ordered to pay her, in particular, a monthly pension of 1,700 euros (EUR) for loss of earnings and further compensation for non-pecuniary damage of EUR 425,000. She claimed that her disability at a rate of 100 per cent, her inability to work, her constant pain and the fact that she could only move in a wheelchair were caused by her treatment in that clinic.

On 2 February 2006 the Bremen Court of Appeal dismissed the applicant’s request for legal aid as ill-founded as her planned action for a reopening of her proceedings against the H. clinic lacked sufficient prospects of success. The Court of Appeal found that the applicant’s intended action for a retrial of her case was inadmissible for lack of a ground for retrial under Article 580 of the Code of Civil Procedure.

The Bremen Court of Appeal found that, other than for criminal proceedings (Article 359 no. 6 of the Code of Criminal Procedure; see Relevant domestic law below), the Code of Civil Procedure did not provide for the reopening of proceedings which had been concluded by a final judgment in cases in which the European Court of Human Rights had found a breach of the Convention. In accordance with the domestic courts’ well‑established case-law, Article 580 no. 7 (b) of the Code of Civil Procedure could not be applied by analogy in respect of a judgment of that court, which was not a document for the purposes of the said provision.

The Court of Appeal considered that there was no gap in the legislative provisions on reopening of the proceedings which had to be filled by an analogous application of Article 580 no. 7 (b) of the Code of Civil Procedure. The legislator, by adopting (only) Article 359 no. 6 of the Code of Criminal Procedure in 1998, had made it clear that reopening should only be provided for in criminal, and not in civil proceedings in cases in which the European Court of Human Rights had found a breach of the Convention.

The Court of Appeal further considered that the applicant’s intended action also did not raise a difficult or unanswered legal question which made it necessary to grant her legal aid in order to comply with the constitutional right to equality in respect of access to court. In particular, as shown above, under the domestic courts’ well-established case-law, it was clear that Article 580 no. 7 (b) of the Code of Civil Procedure could not be applied by analogy.

The Court of Appeal took the view, in that context, that Article 46 of the Convention permitted the Contracting Parties, having regard to the importance of the res judicata effect in the domestic legal orders, not to amend judicial decisions which had become final and which had subsequently been considered by the European Court of Human Rights not to comply with the Convention. Article 41 of the Convention permitted that court to grant an applicant compensation in such circumstances. The applicant had been granted compensation in the European Court of Human Rights’ judgment of 16 June 2005 in her case.

On 20 April 2006 the Bremen Court of Appeal dismissed the applicant’s objection to its decision of 2 February 2006 as inadmissible as the applicant had failed to demonstrate that the Court of Appeal’s decision had either breached procedural rights or was flagrantly illegal. It added that the applicant’s request for legal aid was to be dismissed, in addition to the reasons it had set out in its decision of 2 February 2006, as the applicant now had sufficient means to bear the costs of the proceedings. She had received the payment of EUR 75,000 awarded by the European Court of Human Rights in non-pecuniary damages to her and could be expected to use part of that amount for the costs of the fresh proceedings she intended to bring. The Court of Appeal further found that the applicant had also not submitted any grounds which made it amend its finding that there was no ground for retrial in her case.

(b) The proceedings before the Federal Constitutional Court

On 10 March 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the Court of Appeal’s decision of 2 February 2006. By submissions dated 22 May 2006, she extended her complaint to the Court of Appeal’s decision of 20 April 2006. Moreover, by submissions dated 7 May 2008, the applicant informed the Federal Constitutional Court of the content of the Committee of Ministers’ Resolution of October 2007, closing the examination of the case of Storck v. Germany, application no. 61603/00 (see in detail below).

On 18 August 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, which it had communicated to the Land of Bremen for observations, and declined to grant her legal aid in the proceedings before it (file no. 2 BvR 1380/08).

The Federal Constitutional Court left open the question whether the applicant’s constitutional complaint lacked prospects of success already because the applicant no longer lacked sufficient means for bringing an action for retrial of her case.

The Federal Constitutional Court considered, first, that the applicant had not sufficiently substantiated her claim that the Court of Appeal had disregarded her right under Article 46 of the Convention to end a breach of the Convention and to grant sufficient redress. Her constitutional complaint was therefore inadmissible in this respect. The applicant failed to demonstrate that the European Court of Human Rights’ order for payment of non-pecuniary damages and costs under Article 41 of the Convention had not been executed. Moreover, the European Court of Human Rights had not expressly suggested a reopening of the proceedings before the domestic courts in its judgment.

Second, the applicant failed to substantiate that the Court of Appeal, by applying Article 580 of the Code of Civil Procedure, which, other than Article 359 no. 6 of the Code of Criminal Procedure, did not stipulate that the finding of a breach of the Convention by the European Court of Human Rights constituted a ground for reopening, breached the right to equality.

Third, as regards the alleged breach of the applicant’s right to equal treatment in the sphere of legal protection, the applicant’s constitutional complaint was in any event ill-founded. The Federal Constitutional Court confirmed the Court of Appeal’s finding that the legal question before that court had not been difficult and the answer to be given to it had been clear. An action for a retrial of the applicant’s case had indeed not lain under Article 580 of the Code of Civil Procedure in cases in which the European Court of Human Rights had found a breach of the Convention. At the time of its decisions in 2006, the Court of Appeal had thus not been in a position, by interpreting the law in a methodically defendable manner, to decide again on the applicant’s action for compensation. Therefore, the refusal of legal aid had not frustrated the purpose of legal aid, namely to give persons without sufficient means essentially the same access to court as persons having sufficient means.

Moreover, in the Federal Constitutional Court’s view, neither the Convention nor the European Court of Human Rights’ case-law required reopening the civil proceedings brought by the applicant. Referring, in particular, to that court’s judgment in the case of Verein gegen Tierfabriken Schweiz ((VgT) v. Switzerland (no. 2) [GC], no. 32772/02, ECHR 2009), it further argued that the European Court of Human Rights did not have jurisdiction to examine whether a Contracting State had complied with its duties under Article 46 § 2 of the Convention to execute that court’s judgment. There were no new questions which arose after the Committee of Ministers’ decision to terminate the supervision of the execution of that court’s judgment as a reopening had not been possible under the applicable provisions of domestic law. The Federal Constitutional Court further considered that reopening the proceedings against the clinic had not been the only way for the applicant to obtain full redress for the breaches of the Convention. It had been open to the applicant to bring an action for damages under Article 5 § 5 of the Convention against the Federal Republic of Germany or the Land of Bremen. However, her claim for damages under that provision had probably become time-barred in the meantime.

3. The supervision of the execution of the European Court of Human Rights’ judgment in application no. 61603/00

The Committee of Ministers examined the case of Storck v. Germany, application no. 61603/00, in its 1007th meeting of 15-17 October 2007, that is, at a point in time between the decisions of the Bremen Court of Appeal taken in the proceedings at issue in 2006 and the decision of the Federal Constitutional Court of 18 August 2013.

Acting under the terms of Article 46 § 2 of the Convention, which provides that it supervises the execution of final judgments of the European Court of Human Rights, the Committee of Ministers decided to close the examination of the applicant’s case (Resolution CM/ResDH(2007)123 of 17 October 2007). It recalled that the finding of violations by the Court required, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent State, where appropriate, of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum. Furthermore, the respondent State had to adopt general measures, preventing similar violations.

The Committee of Ministers further recalled that the Court had found the applicant’s detention in a locked ward of the private psychiatric clinic in question and her medical treatment against her will to have breached Article 5 § 1 and Article 8 of the Convention. In the Appendix to its Resolution, the Committee of Ministers stated:

“Individual measures

The European Court awarded 75 000 euros just satisfaction in respect of non-pecuniary damage. Under German law until end of 2006 there was no explicit possibility to ask for reopening of civil proceedings on the grounds that the domestic court’s judgment did not interpret domestic law in the spirit of the Convention. In that respect the German Code of Civil Procedure differed from the Criminal Code of Procedure, which explicitly provides reopening in cases where the European Court found a violation which might have had repercussions on the outcome of the proceedings at issue (paragraph 359 Nr. 6 StPO).

On 31/12/2006 new legislation entered into force providing for reopening of civil proceedings in the same way as it was already the case for criminal proceedings (paragraph 580 Nr. 8 Code of Civil Procedures, introduced through the 2nd law on modernising the judiciary, BGBl. I 2006 no. 66 of 30/12/2006). As the law does not have any retroactive effect, it appears that the applicant might not benefit from it. The applicant could not initiate criminal proceedings for deprivation of liberty ... and bodily harm ... as they were already time-barred when the applicant regained her ability to speak. Nevertheless the applicant is currently seeking reopening of domestic proceedings with a view to receiving additional compensation for pecuniary damage caused by her illegal detention. Her claim for legal aid was rejected by the Bremen Court of Appeal in February 2006. In March 2006 the applicant lodged a constitutional complaint against this decision, arguing that under German constitutional law as well as under the Convention, reopening proceedings would be possible and not futile and therefore legal aid ought to be granted. Given the constant practice of the Federal Constitutional Court, it is expected that the domestic court in its decision will fully implement the Convention as well as the European Court’s case law in order to grant full redress to the applicant.”

Under the heading of general measures, the Committee of Ministers recalled, inter alia, that the introduction into German law of the possibility of reopening civil proceedings following a violation found by the Court was in line with its Recommendation to Member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (Recommendation Rec(2000)2 adopted on 19 January 2000 at the 694th meeting of the Ministers’ Deputies).

Following the Federal Constitutional Court’s decision of 18 August 2013 declining to consider the applicant’s constitutional complaint, the applicant requested the Committee of Ministers on 13 March 2014 to reopen the proceedings for the supervision of the execution of the Court’s judgment of 16 June 2005. The Committee of Ministers did not (yet) give a decision on the applicant’s request.

B. Relevant domestic law

1. Provisions of the Code of Civil Procedure and of the Introductory Act to that Code

Article 580 of the Code of Civil Procedure, as in force at the relevant time, enumerated in its nos. 1 to 7 (b) the grounds for reopening of civil proceedings. Article 580 no. 7 (b) of the Code of Civil Procedure, in particular, provided, and still provides, that an action for retrial of a case before the civil courts lies where the party finds, or is put in the position to avail him- or herself of, another document that would have resulted in a decision more favourable to that party’s interests.

With effect from 31 December 2006 the legislator enacted a new ground for retrial of a case in Article 580 of the Code of Civil Procedure. Under Article 580 no. 8, an action for retrial lies against final judgments of the civil courts if the European Court of Human Rights found a violation of the Convention or the Protocols thereto and if the civil courts’ judgment is based on that violation. Under section 35 of the Introductory Act to the Code of Civil Procedure, Article 580 no. 8 of the Code of Civil Procedure does not apply to proceedings which were terminated by a final judgment prior to 31 December 2006.

2. Provision of the Code of Criminal Procedure

Under Article 359 no. 6 of the Code of Criminal Procedure reopening of criminal proceedings which were terminated by a final judgment is permitted for the benefit of the convicted person if the European Court of Human Rights found a violation of the Convention or the Protocols thereto and if the criminal court’s judgment is based on that violation. That ground for retrial was introduced by the legislator in Article 359 of the Code of Criminal Procedure with effect from 15 July 1998.

COMPLAINTS

The applicant complains about the domestic courts’ refusal to reopen the civil proceedings against the H. clinic following the Court’s judgment in her case (Storck v. Germany, no. 61603/00, ECHR 2005‑V) finding a violation of Article 5 § 1 and Article 8 of the Convention. She claims that the domestic courts were obliged to reopen these proceedings as this was the only way for her to obtain full redress for the Convention violations found by the Court in its said judgment.

The applicant further argues that the domestic courts’ failure to grant her legal aid for bringing an action for retrial of her case, and the failure to grant her legal aid in the proceedings before the Federal Constitutional Court, breached her right to equal treatment in respect of access to court, the principle of equality of arms, the fairness of the proceedings and the right of access to court.

The applicant relies on Articles 1, 5 § 1, 6 § 1, 8, 13, 14 and 46 of the Convention and Article 1 of Protocol no. 1 to the Convention.

QUESTIONS TO THE PARTIES

1. Is the applicant’s complaint about the domestic courts’ refusal to grant the applicant legal aid for bringing an action for retrial of her case and their refusal to reopen the proceedings and to allow her action for compensation compatible ratione materiae with the provisions of the Convention, having regard, in particular, to the principles developed in the case of Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, ECHR 2015)?

2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, was an action for the reopening of the civil proceedings against the H. clinic still an effective remedy within the meaning of this provision in respect of the applicant’s complaints, following the rejection of her request to be granted legal aid for bringing such an action?

Which possibilities were, and are, available for the applicant before the domestic authorities in order to obtain compensation, including ex gratia payments, for pecuniary and non-pecuniary damage sustained as a result of the breaches of Article 5 § 1 and Article 8 of the Convention found by the Court in its judgment of 16 June 2005 in the case of Storck v. Germany (no. 61603/00, ECHR 2005‑V)?

3. Did the domestic courts’ statements in the legal-aid proceedings as regards the impossibility to reopen the proceedings despite the Court’s findings in the case of Storck (cited above), again violate the applicant’s Convention rights, in particular her right to liberty under Article 5 § 1 of the Convention and her right to respect for her private life under Article 8 of the Convention?

4. Did the domestic courts’ failure to grant the applicant legal aid for bringing an action for retrial of her case breach her right to equal treatment in respect of access to court, the principle of equality of arms, the fairness of the proceedings and the right of access to court under Article 6 § 1 of the Convention, taken alone or in conjunction with Article 14 of the Convention?

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