FIFTH SECTION
DECISION
Application no. 18562/03
by Kurt WEIGAND
against Germany
The European Court of Human Rights (Fifth Section), sitting on
11 September 2007 as a Chamber composed of:
Mrs S. Botoucharova, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 5 June 2003,
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 Kurt Weigand, is a German national who was born in 1920 and lives in Bad Neuenahr. He was represented before the Court by the law firm Eichele and Ditgen, which is based in Koblenz. The German Government (“the Government”) were 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.
A. Background to the case
In June 2000 the applicant had a car accident. He was convicted of a traffic offence and sentenced to pay a fine.
On 19 November 2001 the driver of a car, N, informed the police that the same day he had been involved in a traffic incident with the applicant.
In fact he had to evade the applicant’s car and despite his efforts their door mirrors had collided. On 18 December 2001 the Ahrweiler District Authority ordered the applicant to undergo a medical examination until 18 February 2002 in order to examine his fitness to drive a car (Fahreignung).
On 5 July 2002 the Ahrweiler District Authority withdrew the applicant’s driving licence, finding that the two previous traffic incidents had given rise to doubts in respect of the applicant’s fitness to drive a car. Moreover the applicant had failed to present a medical certificate issued by a public health officer. On 21 May 2003 the Koblenz Administrative Court rejected the applicant’s appeal against the decision of 5 July 2002. The court inter alia considered the evidence given by N. On 9 March 2004 the North Rhine Administrative Court of Appeal quashed the decision to withdraw the driving licence on formal grounds.
B. The civil proceedings at issue
In 2003 the applicant initiated proceedings before a single judge of the Bad Neuenahr-Ahrweiler District Court against N in order to obtain compensation. It appears that the applicant claimed compensation for damages resulting from the accident and N’s alleged false testimony in the administrative proceedings (see above). The District Court ordered simplified proceedings pursuant to Section 495a of the Code of Civil Procedure.
On 1 October 2003 the applicant requested an oral hearing.
On 15 October 2003 the District Court rejected the applicant’s claim without having held an oral hearing. It stated that the applicant had no claim for damages as he had failed to prove that the damage to his door mirror was caused by the conduct of N.
The applicant requested to reopen the hearing of the case pursuant to Section 321a of the Code of Civil Procedure, complaining about the absence of an oral hearing before the single judge. The applicant explained that his claim for damages was primarily based on the fact that N had made a false statement before the Koblenz Administrative Court. Contrary to N’s allegations the door mirror of the applicant’s car was not broken after the accident but had only been touched slightly. The applicant stated that he could prove his allegation by presenting the door mirror in question.
On 12 November 2003 the Bad Neuenahr District Court, sitting as a single judge, rejected the applicant’s request to reopen proceedings. It held that the absence of an oral hearing despite the applicant’s explicit motion did infringe the latter’s right to be heard before the court. However, this infringement was not decisive for the outcome of the case. The court stated that as such a false statement did not give rise to compensation claims.
In any event, even if the applicant had presented the door mirror of his car at an oral hearing, it would not have proved that N had given a false statement. In this respect the single judge concluded that the terms used by N were open to interpretation and did not necessarily mean that the door mirror had been totally destroyed.
On 23 January 2004 the Koblenz Regional Court declared the applicant’s further appeal inadmissible, holding that the challenged decision was not subject to appeal according to Section 321a § 4 of the Code of Civil Procedure. It furthermore dismissed the appeal on the merits, endorsing the District Court’s reasoning.
On 29 July 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint without giving further reasons.
COMPLAINTS
1. The applicant complained under Article 6 of the Convention about the lack of an oral hearing before the German courts.
2. He further complained under Article 13 of the Convention that he had no appeal against the District Court’s decisions.
THE LAW
On 25 July 2007 the Court received the following declaration from the Government signed on 23 July 2007:
“I, Mrs Almut Wittling-Vogel, Agent of the Government, declare that the Government of Germany offer to pay ex gratia 500 euros to Mr Kurt Weigand 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 6 August 2007 the Court received the following declaration from the applicant’s counsel signed by the applicant himself on 28 July 2007:
“We, Eichele and Ditgen, lawyers, note that the Government of Germany are prepared to pay me ex gratia the sum of 500 euros to Mr Kurt Weigand 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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
We accept the proposal and waive any further claims against Germany in respect of the facts giving rise to this application. We 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 WesterdiekSnejana Botoucharova
RegistrarPresident
Full & Egal Universal Law Academy