FOURTH SECTION
DECISION
Application no. 35745/19
Markus WITT
against Germany
The European Court of Human Rights (Fourth Section), sitting on 5 September 2023 as a Committee composed of:
Faris Vehabović, President,
Anja Seibert-Fohr,
Sebastian Răduleţu, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to the above application lodged on 1 July 2019,
Having regard to the declaration submitted by the respondent Government on 12 October 2022 requesting the Court to strike part of the application out of the list of cases and the applicant’s reply to that declaration;
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Markus Witt, is a German national, who was born in 1973 and lives in Teltow. He was represented before the Court by Mr H. Hembach, a lawyer practising in Bergisch Gladbach.
2. The German Government (“the Government”) were represented by one of their Agent, Mr H.‑J. Behrens.
The circumstances of the case3. The applicant complained under Articles 6 § 1, 8 and 13 of the Convention about the length of the proceedings before the Brandenburg Court of Appeal[1] and about the lack of an effective remedy in that respect.
4. The proceedings started on 28 August 2017 when the applicant lodged an appeal against the Family Court’s decision regarding access to his child. On 14 August 2018 the applicant lodged a first plea for accelerating the proceedings, pursuant to section 155 b of the Act on Proceedings in Family Matters and in Matters of Non‑Contentious Jurisdiction (“the Act” - see paragraph 32 below), which the Court of Appeal rejected on 6 September 2018 in a reasoned decision. On 19 November 2018 the applicant lodged a second plea for accelerating of the proceedings and on 13 January 2019, in absence of a formal decision by the Court of Appeal upon the plea, a complaint for accelerating the proceedings pursuant to section 155 c of the Act. On 16 January 2019 the Court of Appeal rendered its decision on the merits and excluded access to the applicant’s child until 30 July 2019. The decision was served upon the applicant’s lawyer on 28 January 2019.
5. The complaints under Articles 6 § 1 and 8 of the Convention in respect of the length of the proceedings and under Article 13 of the Convention in respect of the lack of an effective remedy to complain about the length of proceedings had been communicated to the Government while the remainder of the application had been declared inadmissible.
Relevant domestic law6. On 15 October 2016 the Act on Protracted Court Proceedings in Family Matters entered into force introducing a preventive remedy to accelerate family law proceedings, like contact rights proceedings, under sections 155 b and 155 c of the Act on Proceedings in Family Matters and in Matters of Non‑Contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit). This remedy provides an applicant with the right to raise a plea for accelerating the proceedings (Beschleunigungsrüge) and, in the event of non‑compliance by the adjudicating court, the right to lodge a corresponding complaint (Beschleunigungsbeschwerde) with the appellate court.
THE LAW
The length of proceedings complaint7. The applicant complained about the duration of the proceedings before the Brandenburg Court of Appeal regarding the right of access to his child. He relied on Articles 6 § 1 and 8 of the Convention.
8. After the failure of attempts to reach a friendly settlement, by a letter of 31 August 2022, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
9. The declaration provided as follows:
“The duration of the Applicant’s proceedings before Brandenburg Higher Regional Court violated the “reasonable time” requirement of Article 6 para. 1. of the Convention. As this case concerned proceedings relating to the right of access to the Applicant’s child, the Federal Government acknowledges further that the duration of the proceedings constituted a violation of the Applicant’s right to respect for his family life within the meaning of Article 8 of the Convention. (...). Should the Court decide to strike this case from its list, the Federal Government would be willing to pay the applicant an amount of EUR 1,800.00 in reparation. That sum would be deemed to settle all of the applicant’s claims in connection with the above-mentioned application against the Federal Republic of Germany (including non-pecuniary damage) as well as costs and expenses incurred (...)”
10. By a letter of 2 December 2022, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the German legal framework does not ensure the right to speedy proceedings in custody matters and that the amount offered by the Government as compensation was not in the line with the sums that Court had granted in comparable cases.
11. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application, or part of it, out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the applications”.
12. It also reiterates that in certain circumstances, it may strike out an application, or part of it, under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
13. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003‑VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
14. The Court has established in a number of cases, including case brought against Germany, its practice concerning complaints about the violation of Articles 6 and 8 of the Convention regarding the right to a hearing within a reasonable time (see, for example, Sürmeli v. Germany [GC], no. 75529/01, ECHR 2006‑VI; Skugor v. Germany, no. 76680/01, 10 May 2007; Moog v. Germany, nos. 231280/08 and 2334/10, 6 October 2016; see also Edmund Müller v. Germany (dec.) [Committee], no. 13240/15, 21 February 2017).
15. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).
16. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).
17. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, this part of the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
18. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the complaint under Articles 6 § 1 and 8 of the Convention.
The complaint under Article 13 of the Convention19. The applicant further complained under Article 13 of the Convention that he had had no effective remedy to complain about the length of proceedings as the Brandenburg Court of Appeal had disregarded domestic law and the Court’s case-law when dealing with his pleas for accelerating the proceedings.
20. The Court reiterates that the word “remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, for example, Stasik v. Poland, no. 21823/12, § 113, 6 October 2015, and Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006).
21. The Court notes that after almost one year had elapsed since the beginning of the proceedings at issue the applicant made use twice of the preventive remedies foreseen in sections 155 b and 155 c of the Act to which the Court of Appeal reacted by rejecting the first plea within three weeks and by rendering its decision on the merits some days after having received the applicant’s complaint for accelerating the proceedings (see paragraph 4 above).
22. Having regard to the Government’s admissions in respect of Articles 6 § 1 and 8 of the Convention and given the absence of substantiated submissions by the applicant that the preventive remedy was generally deficient, the Court considers that this complaint does not disclose any appearance of a separate breach of Article13 of the Convention.
23. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 6 § 1 and 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein ;
Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention ;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 28 September 2023.
Ilse Freiwirth Faris Vehabović
Deputy Section Registrar President
[1] Referred to as the Brandenburg Higher Regional Court in the Government’s unilateral declaration (see paragraph 9 below)