FIFTH SECTION

CASE OF KRESSIN v. GERMANY

(Application no. 21061/06)

JUDGMENT

STRASBOURG

22 December 2009

This judgment is final but it may be subject to editorial revision.

In the case of Kressin v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Karel Jungwiert, President,
	Mark Villiger,
	Isabelle Berro-Lefèvre, judges,
and Stephen PhillipsSection Registrar,
Having deliberated in private on 1 December 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The German Government (“the Government”) were represented by their Agent, Mrs Almut Wittling-Vogel, Ministerialdirigentin, 
Federal Ministry of Justice.
3.  On  the President of the Fifth Section decided to give notice of the application to the Government. The Federal Republic of Germany having accepted the provisional application of the provisions of Protocol 14 governing the power of three judge committees to decide on cases in which there is well-established case-law, it was decided to assign the application to a Committee. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1947 and lives in Bascharage.
A. Background to the case
5.  The applicant had been working as a licensed doctor in Berlin from 1972 to 1994. Since 1994 he has been practising medicine in Luxembourg.
6.  He is a member of the Berlin Medical Association (Ärztekammer), a corporation under public law and since 1972 had been paying compulsory contributions to its pension scheme until his change of residence to Luxembourg in 1994.
7.  Prior to his move to Luxembourg, he was informed by the Berlin Medical Association's pension scheme (Ärzteversorgung) that he could either terminate his membership or continue to stay as a member on a voluntary basis while paying contributions at the full or a reduced rate. The applicant opted for the continuation of his membership and chose to pay voluntary contributions in an amount equal to half of the maximum contribution rate.
8.  Since 1994 he has also paid the full compulsory contribution to the relevant Luxembourg pension scheme.
9.  Ever since his move to Luxembourg the Berlin pension scheme has informed the applicant annually in writing about the amount of his future pension entitlement. He objected to the corresponding notifications on several occasions alleging that while the amount of contributions had been increased, his expected pension had been unduly reduced compared to previous years. He was repeatedly informed by the Berlin pension scheme that the decrease of his pension entitlement was due to the agreed adjustment of his contributions since 1994.
10.  By letters of 9 and 15 August 2001 the Berlin pension scheme advised the applicant of the option to have the meanwhile accrued contributions transferred to the Luxembourg pension scheme subject to the latter's approval. It further specified that a transfer of the contributions could only be effected by means of a direct payment to the Luxembourg pension scheme and that it was not possible to disburse the amount accrued to the applicant himself. By a letter dated 20 August 2001 the applicant asked for his contributions to be transferred.
11.  On 12 October 2001 the Berlin pension scheme informed the applicant that the conditions of a transfer were not fulfilled since the Luxembourg pension scheme was not in a position to accept a direct transfer of the contributions. The applicant notified the Berlin pension scheme on 1 November 2001 that he nevertheless wanted to continue the payment of his voluntary contributions.
12.  In reply to a further objection by the applicant on 13 September 2003 regarding the calculation of the amount of his future pension entitlement, the Berlin pension scheme, by letter dated 18 September 2003, specified that the definite amount of the applicant's pension claim would be determined once he had become eligible to the actual payment of pension benefits and could only be challenged together with a corresponding payment order.
B. The proceedings before the Berlin Administrative Court
13.  On 9 October 2003 the applicant brought an action against the Berlin Medical Association (Ärztekammer) with the Berlin Administrative Court claiming the transfer of the total amount of his compulsory and voluntary contributions accrued with the Medical Association's pension scheme including interest and compensation for inflation to the Luxembourg pension scheme. Alternatively, he requested that the Berlin pension scheme be obliged to freeze his pension entitlement at the current amount while maintaining the amount of contributions to be paid by him.
14.  By a letter dated 13 October 2003 the Administrative Court informed the applicant that there existed doubts as to the admissibility of his action. It asked in particular for information as to whether there existed a decision of the Berlin Medical Association rejecting the transfer of his contributions and whether he had instituted preliminary administrative proceedings (Widerspruchsverfahren) in this respect. As regards the applicant's alternative action, the Administrative Court pointed out that a corresponding dispute could only be instituted once the applicant was entitled to the payment of the pension. The applicant replied by letter dated 18 October 2003.
15.  By letters dated 29 October 2003 and 23 February 2004 the Medical Association submitted its written observations to which the applicant replied by written submissions dated 4 March 2004.
16.  At his repeated request, the applicant was informed by the Administrative Court, by letters dated 27 August 2004, 27 January 2005 and 13 December 2005, that it was not yet foreseeable when a decision in the matter would be taken since older pending matters were being treated as a priority.
17.  On 4 December 2006 the Berlin Administrative Court assigned the case to a single judge for a decision.
18.  On 17 July 2007 a hearing took place. By a judgment of the same day the Administrative Court dismissed the action as primarily inadmissible and did not grant the applicant leave to appeal.
19.  As regards the applicant's claim for a transfer of his pension contributions the Administrative Court held that he was lacking the need for judicial relief (Rechtsschutzbedürfnis) since following the failed attempts to transfer the contributions in 2001 the applicant had voluntarily continued to pay the contributions and had not repeated his request to have them transferred by the Berlin pension scheme. It found that the applicant could only have had recourse to the courts after having challenged an administrative decision rejecting his request. The applicant's alternative claim was rejected as manifestly ill-founded by the Administrative Court.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
20.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
21.  The Government contested that argument and adduced in particular that measures had been taken by the Berlin Administrative Court in order to reduce an alleged temporary and exceptional backlog of court business.
22.  The period to be taken into consideration began with the applicant's action brought before the Berlin Administrative Court on 9 October 2003 and ended on 20 July 2007 the day on which the judgment in the first instance proceedings was served on the applicant. It thus lasted more than three years and nine months for one level of jurisdiction.
A.  Admissibility
23.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
24.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
25.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).
26.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, while noting the Government's submissions that the Berlin Administrative Court was subject to an alleged temporary overload of work only and measures had been taken to reduce the backlog of pending cases during the period in question, the Court cannot ignore that in the present case it took more than three years and nine months from the lodging of the action on 9 October 2003 until 17 July 2007 before a hearing in the case took place. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
27.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
28.  The applicant claimed just satisfaction in respect of pecuniary and non-pecuniary damage and left the amounts to be awarded at the Court's discretion.
29.  The Government pointed out that the applicant had not substantiated his related claims.
30.  The Court observes that the applicant did not specify the nature and amount of pecuniary damage suffered and has not established that any such damage was caused by the length of the proceedings before the Administrative Court. As regards the applicant's submissions that in the event of a transfer of his pension contributions accrued with the Berlin Medical Association's pension scheme to the Luxembourg pension scheme the total amount of his pension entitlement with the latter would have increased, the Court does not discern a causal link between the violation found and the pecuniary damage alleged. In particular, it cannot speculate as to what the outcome of the proceedings would have been had they satisfied the requirements of Article 6 § 1 as to their length (see Sürmeli v. Germany [GC], no. 75529/01, § 144, 2006‑...). Accordingly, it considers that no award can be made to the applicant under this head.
31.  The Court considers that the applicant must have sustained non-pecuniary damage as a result of the excessive length of the proceedings which is not sufficiently compensated by the finding of a violation. Ruling on an equitable basis and having regard to the nature of the Convention violation it has found, the Court awards the applicant EUR 3,000 (three thousand euros) under that head.
B.  Costs and expenses
32.  The applicant also claimed the reimbursement of costs and expenses incurred before the domestic courts and the Court and again left the amounts to be awarded at the Court's discretion.
33.  The Government argued that the applicant had not provided any evidence regarding costs and expenses incurred.
34.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the above criteria and in particular to the fact that the applicant failed to specify the costs and expenses incurred before the national courts within the time-limit set by the Court, it rejects the claim for costs and expenses.
C.  Default interest
35.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  that 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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 22 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Karel Jungwiert
	Deputy Registrar	President