Sürmeli v. Germany [GC]

Information Note on the Court’s case-law No. 87

June 2006

Sürmeli v. Germany [GC] - 75529/01

Judgment 8.6.2006 [GC]

Article 13

Effective remedy

Lack of effectiveness of domestic remedies concerning length of judicial proceedings: violation

Article 46

Article 46-2

Execution of judgment

Government Bill introducing a remedy with a view to preventing procedural delays: unnecessary for the Court to indicate general measures to be taken at national level

Facts: In May 1982 the applicant was involved in an accident with a cyclist and sustained injuries including a broken left arm. After negotiations with the cyclist’s insurance company had failed, the applicant applied to the Regional Court in 1989, in particular seeking damages and a monthly pension. The proceedings comprised two phases. The first ended when the Regional Court held that the applicant was entitled to damages at a rate of 80% for the consequences of the accident. An appeal by the applicant against that decision was unsuccessful and his subsequent appeal on points of law was dismissed in 1993. The second phase of the civil proceedings concerned the assessment of the amount of the damages and pension to be awarded to the applicant. It began in March 1994, after the case file had been sent back from the Federal Court of Justice to the Regional Court. In 2005 the Regional Court delivered its final judgment, making an award to the applicant for non-pecuniary damage. In its assessment of the award the court pointed out that the length of the proceedings could be taken into account only in small measure because the defendant could not be held responsible for the fact that the applicant had not brought his claim until seven years after the accident, making it more difficult to adduce evidence, that he had refused to allow the file from the proceedings in the Social Court of Appeal to be used in evidence and that he had objected on several occasions to the choice of experts appointed. The applicant subsequently appealed to the Court of Appeal, before which the proceedings are currently pending.

In 2001 the applicant lodged a constitutional complaint about the excessive length of the proceedings. The Federal Constitutional Court decided not to examine the complaint, without giving reasons for its decision. A second constitutional complaint was dismissed in June 2002 as being insufficiently substantiated. In May 2002 the applicant applied to the Regional Court for legal aid in order to bring an action for damages against the Land of Lower Saxony on account of the length of the proceedings in the Regional Court. His application was refused at first instance and on appeal on the grounds that the delays in the proceedings were due to the courts’ excessive workload and that he had not provided sufficient details of the damage he had allegedly sustained.

Law: Article 13 – As regards a constitutional complaint, the Court observed that the right to expeditious proceedings was guaranteed by the German Basic Law and that a violation of that right could be alleged before the Federal Constitutional Court. Where that court found that proceedings had taken an excessive time, it declared their length unconstitutional and requested the court concerned to expedite or conclude them. However, it was not empowered to set deadlines for the lower court or to order other measures to speed up the proceedings in issue; nor was it able to award compensation. The only means available for it to ensure that pending proceedings were expedited was to declare that their length was in breach of the Basic Law and to call upon the court concerned to take the necessary steps for their progress or conclusion. The Federal Constitutional Court itself acknowledged the limited scope of its powers in declaring the length of proceedings to be unconstitutional. That being so, the Court found that the German Government had not shown that a constitutional complaint was capable of affording redress for the excessive length of pending civil proceedings. Accordingly, the applicant had not been required to raise before that court his complaint about the length of the proceedings in his case.

As regards an appeal to a higher authority, the Court noted that the Government had not advanced any relevant reasons to warrant the conclusion that that remedy, provided for in the German Judges Act, would have been capable of expediting the proceedings in the Regional Court.

As regards a special complaint alleging inaction, this remedy had no statutory basis in German law. Although a considerable number of courts of appeal had accepted it in principle, the admissibility criteria for it were variable and depended on the circumstances of the case. The Federal Court of Justice, for its part, had yet to give a ruling on the admissibility of such a remedy. Having regard to the uncertainty about the admissibility criteria for this remedy and to its practical effect on the proceedings in question, the Court considered that no particular relevance should be attached to the fact that the Court of Appeal had not ruled out such a remedy in principle. Moreover, the Federal Constitutional Court had not declared the applicant’s constitutional complaints inadmissible for failure to exhaust domestic remedies. Accordingly, the Court concluded that a special complaint alleging inaction could not be regarded as an effective remedy in the applicant’s case.

As regards an action for damages, the Court noted that a single judicial decision, such as the regional court decision relied on by the Government in support of their arguments – and given, moreover, at first instance – was not sufficient to satisfy it that there had been an effective remedy available in theory and in practice. In any event, the Court noted that even if the courts before which an action for damages was brought were to conclude that there had been a breach of judicial duties on account of excessively lengthy proceedings, they would not be able to make an award in respect of non-pecuniary damage, whereas in cases concerning the length of civil proceedings the applicants above all sustained damage under that head.

The Court therefore considered that none of the four remedies advocated by the Government could be considered effective within the meaning of Article 13.

Conclusion: violation (unanimously).

Article 6(1) – The Court noted that the proceedings in issue, which had begun on 18 September 1989 and were still pending in the German courts, had lasted more than 16 years and seven months to date. Notwithstanding both the conduct of the applicant, who had repeatedly asked for extensions of time and had objected several times to the Regional Court judges dealing with his case, and the arguments put forward by the Government, the Court considered that the length of the proceedings had exceeded a reasonable time.

Conclusion: violation (unanimously).

Article 41 – EUR 10,000 for non-pecuniary damage.

Article 46 – The Court took due note of the existence of a bill to introduce in German written law a new remedy in respect of inaction. It welcomed such an initiative, since a preventive remedy of that kind dealt with the root cause of the length-of-proceedings problem and appeared more likely to offer litigants adequate protection than compensatory remedies, which merely allowed action to be taken a posteriori. The Court encouraged the speedy enactment of a law containing the proposals set out in the bill in question and considered it unnecessary to indicate any general measures to be taken at national level in the execution of its judgment in the present case.

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This summary by the Registry does not bind the Court.

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