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FIFTH
SECTION
CASE OF NIESEN v. GERMANY
(Application
no. 32513/08)
JUDGMENT
STRASBOURG
21 October 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Niesen v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Isabelle
Berro-Lefèvre,
Ganna Yudkivska, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32513/08) against the
Federal Republic of Germany lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a German national, Ms Lieselotte
Niesen (“the applicant”), on 7 July 2008.
- The
German Government (“the Government”) were represented by
their Agent Mrs A. Wittling-Vogel, Ministerialdirigentin, of
the Federal Ministry of Justice.
- On
16 December 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol 14
the application was assigned 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
- The
applicant was born in 1950 and lives in Cologne (Köln).
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
A. Background to the case
- On
1 December 2003 the applicant and her husband entered into a notarial
purchase agreement regarding the acquisition of real property with a
house for the purchase price of 325,000.00 euros (EUR). The vendor
assured them in the notarial purchase deed that the house disposed of
two separate apartments and had all necessary permits for use by two
parties.
- In
January 2004 the applicant learned that parts of the construction had
been carried out without the required permission and that the use of
the building by two parties had not been authorised.
- The
applicant then set time-limits for the vendor to rectify the
corresponding defects on various occasions and retained part of the
purchase price. Following the expiry of a final deadline set for
August 2004 without the defects being removed, the applicant, who had
meanwhile paid part of the purchase price in the amount of EUR
262,000.00, set off the residual sum in the amount of EUR 63,000.00
against her claim for compensation for the damage incurred by her due
to the defects. The vendor for his part refused transfer of title.
- In
the following the vendor commissioned structural alteration works to
be carried out on the real property in line with a construction
permit obtained on 1 September 2004. However, the applicant found the
alteration works to be insufficient and maintained the set-off.
B. The proceedings before the Cologne Regional Court
- On
28 October 2004 the applicant instituted proceedings against the
vendor of the property before the Cologne Regional Court
(Landgericht) for transfer of title and possession (file No. 8
O 391/04).
- On
26 November 2004 upon receipt of advance payments for court costs by
the applicant, the Regional Court scheduled a first hearing for
21 April 2005.
- In
January 2005 the vendor announced the commencement of execution as
regards the outstanding part of the purchase price.
- On
17 January 2005 the applicant lodged an action to oppose execution of
the vendor’s claim for payment of the residual amount of the
purchase price (Vollstreckungsabwehrklage) with the Cologne
Regional Court (file No. 8 O 23/05) and requested an interim order
for suspension of execution until a judgment in the case had been
rendered.
- On
19 January 2005 the Regional Court also scheduled a first hearing in
this matter for 21 April 2005.
- On
28 January 2005 the Regional Court ordered the provisional
discontinuation of the execution of the vendor’s claim for
payment of the remaining purchase price against provision of security
(Sicherheitsleistung).
- On
21 April 2005 a hearing took place in both proceedings (file No. 8
O 391/04 and file No. 8 O 23/05), upon which the applicant and the
vendor agreed that transfer of the real property should take place on
28 or 29 April 2005 in accordance with the stipulations of the
notarial purchase deed. The parties also asked for both proceedings
to be suspended. It appears that the applicant took possession of the
property on the agreed dates.
- Following
a request by the vendor on 14 June 2005 for both proceedings to be
resumed, the Regional Court summoned the parties by order of 24 June
2005 to a hearing that took place on 10 November 2005. On the
occasion of the hearing the applicant submitted written observations
requesting in addition to her claim for transfer of title and
possession, compensation in the amount of EUR 32,405.30. The hearing
was postponed pending receipt of advance payments for court costs
regarding the applicant’s additional claim.
- A
new hearing was scheduled by the Regional Court on 28 December 2005
upon receipt of the further advance payments for court costs by the
applicant for 11 May 2006.
- On
4 May 2006 the applicant, following repeated extensions of the
initial time-limit set for 6 April 2006, submitted further written
observations.
- At
the hearing of 11 May 2006 the Regional Court set a time-limit until
26 May 2006 for further written submissions by the vendor in reply to
the applicant’s written submissions of 4 May 2006. The
applicant was granted the same time-limit for written submissions
with a view to specifying the claims to be set off against the
remaining purchase price.
- By
a decision of 13 July 2006 regarding both proceedings the
Regional Court indicated to what extent the existence of the alleged
structural defects still had to be substantiated by the applicant and
further pointed out that a corresponding expert opinion which had
been obtained on the applicant’s own motion did not constitute
sufficient evidence in this respect. The Regional Court also
submitted a proposal for a friendly settlement between the parties
comprising both proceedings and granted the parties a time-limit of
four weeks for their related comments.
- On
14 August 2006 the vendor submitted written observations to which the
applicant replied on 5 September 2006. The vendor commented by
written pleadings of 2 November 2006 and the applicant replied on
8 December 2006.
- By
written submissions to the Regional Court dated 10 and 26 October,
2 November and 8 December 2006 as well as by a letter dated 29
January 2007, the applicant and her lawyer emphasised the urgency of
a decision in the matter in view of the increasing financial burden
for the applicant resulting from the unclear legal situation.
- On
16 March 2007 the Regional Court informed the applicant’s
lawyer that a decision on how to proceed in the case could not yet be
taken due to a further change in the person of the judge rapporteur.
The Regional Court explained that the new judge rapporteur had not
yet had the time to become familiarised with the complex case since
other matters were to be treated as a priority.
- On
the occasion of a telephone conversation with the acting judge on
20 March 2007 and by written submissions to the Regional Court
dated 23 April 2007 the applicant’s lawyer again pointed
out that, as the applicant could not use the acquired property, she
faced serious economic losses and stressed the importance of a
decision by the Regional Court in due course so that the property
would no longer lie as a wasted asset.
- By
a letter dated 27 April 2007 the presiding judge apologised to the
applicant for the delays in the proceedings pointing out that the
delays prior to the change of the judge rapporteur could not be
attributed to the court.
- On
16 May 2007 the Regional Court decided to order a joint expert
opinion for both proceedings with a view to determining the actual
defects and the measures required to have the structural alterations
authorised.
- On
27 June 2007, following receipt of the advance payment for the
related expenses by the applicant, the Regional Court charged the
appointed expert with the preparation of the opinion and set a
time-limit of three months for its finalisation.
- On
6 July 2007 the vendor notified the architect who had been working
for him of the litigation in view of a possible third party
intervention (Streitverkündung) in the proceedings. By
written submissions of 9 August 2007 the architect joined the
proceedings on the vendor’s side as a third party defendant.
- On
23 August 2007 the expert carried out a local inspection of the real
property.
- On
20 September 2007 the Regional Court requested the expert to repeat
the local inspection.
- The
expert opinion was rendered on 12 December 2007.
- By
written submissions of 28 December 2007 the applicant again extended
her claim and requested compensation in the additional amount of EUR
41,600.00 plus interest for loss of rent for the period from May 2005
to December 2007 and asked that the vendor be obliged to compensate
all further damages caused by the lack of a permit for use of the
house by two parties and by the insufficient alteration works carried
out by the vendor.
- On
18 January 2008 the Regional Court forwarded the expert opinion of 12
December 2007 to the parties for comments to be submitted within a
time-limit of six weeks. The applicant and the third party defendant
requested the commissioning of a supplementary expert opinion.
- On
1 April 2008 the Regional Court decided to request a second expert
opinion with a view to determining the costs of the measures required
to bring the house in line with the requirements of the building
permit.
- On
30 April 2008 the expert was charged with the preparation of the
corresponding opinion and given a time-limit of three months for its
finalisation.
- Following
an inquiry by the Regional Court on 5 September 2008, the expert
announced that the opinion would be finalised by the end of September
2008. It was delivered on 24 September 2008.
- On
15 October 2008 the expert opinion was served on the parties
who were granted a time-limit of one month for possible comments.
The third party defendant raised further objections against the
expert opinion and requested a further supplementary opinion or,
alternatively, asked that the expert be heard by the court. The
applicant also asked for a supplementary expert opinion.
- On
19 December 2008 the Regional Court scheduled a hearing for the 23
April 2009 to which the expert was summoned with a view to further
clarifying her findings.
- On
the occasion of the hearing on 23 April 2009 the expert replied to
questions raised by the parties and the third party defendant with
respect to her expert opinion. The Regional Court made a further
proposal for a friendly settlement in both proceedings to the parties
and set a time-limit for 22 May 2009 for the parties’ related
comments. A decision in both matters was announced for 18 June 2009.
- By
written submissions dated 8 May 2009 the applicant rejected the
court’s proposal for a friendly settlement.
- On
25 June 2009 the Regional Court rendered judgments in both
proceedings. It dismissed the applicant’s claim for transfer of
title to the real property since only an amount of EUR 25,078.76
could be set off by the applicant and the remainder of the purchase
price had thus not been fully paid but awarded her damages for
additional building costs in the amount of EUR 4.270,00 (file No. 8 O
391/04). Considering that EUR 287,078.76 of the purchase price had
already been paid by the applicant, the court further declared the
execution of the vendor’s claim for payment inadmissible with
respect to this amount (file No. 8 O 23/05).
C. The proceedings before the Cologne Court of Appeal
- By
written submissions of 27 July 2009 (file No. 8 O 23/05) and
25 August 2009 (file No. 391/04) respectively, the applicant
lodged appeals against the said judgments with the Cologne Court of
Appeal.
- A
hearing that was scheduled by the Court of Appeal in both proceedings
for 14 January 2010 was postponed to 4 February 2010 since
the third party defendant’s lawyer was unable to attend.
- On
25 March 2010 the Court of Appeal rendered judgments in both
proceedings. It dismissed the appeal against the judgment of the
Regional Court in the proceedings regarding transfer of title to the
real property (file No. 12 U 51/09). As regards the
proceedings concerning execution of the vendor’s claim for
payment, the Court of Appeal amended the Regional’s Court’s
judgment considering that the purchase price already paid by the
applicant amounted to EUR 298,232.76 and that with respect to this
amount execution of the vendor’s claim for payment of the
purchase price was inadmissible. It dismissed the remainder of the
applicant’s appeal (file No. 12 U 45/09).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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...”
- The
Government contested that argument. They argued that the proceedings
related to the examination of defects in construction of real
property, an area that was particularly complex and where
difficulties arose in particular as regards the establishment of
facts. The Government pointed out that the observations submitted by
the parties were exceptionally voluminous and that the expert
opinions had to deal with a large number of detailed questions. As
regards the importance of what was at stake in the proceedings, the
Government, while accepting that the dispute was a source of great
strain for the applicant, adduced that her case did not fall within
the category of cases that required particularly swift action because
or their pre-eminent importance. In respect of the conduct of the
proceedings the Government conceded that the Regional Court had
scheduled hearings over a period of around five months on two
occasions and that between the applicant’s submissions dated 8
December 2006 and the court’s order for the taking of evidence
of 16 May 2007 another five months elapsed. They further acknowledged
that the changes in the person of the judge rapporteur required some
time for the new judge to familiarise with the case and necessitated
new consultation of the parties and additional deliberations.
However, the Government invoked that notwithstanding these
difficulties and the fact that the Regional Court had been subject to
an overload of work, it was also the applicant’s conduct that
had significantly contributed to the duration of the proceedings. The
parties themselves had asked for suspension of the proceedings on the
occasion of the hearing of 21 April 2005. The applicant had extended
his claim and had submitted new submissions on the occasion of the
hearing of 10 November 2005 which thus had to be postponed. Her
numerous applications for extension of the deadlines set for the
submission of written observations had also contributed to the
duration of the proceedings as well as her repeated objections to the
expert opinions and her requests for supplementary expert opinions.
- The
periods to be taken into consideration began on 28 October 2004 (file
No. 391/04) and on 17 January 2005 (file No. 8 O 23/05) respectively.
The proceedings at first instance ended with the judgments of the
Cologne Regional Court of 25 June 2009 and thus lasted almost four
years and eight months (file No. 391/04) and over four years and five
months (file No. 8 O 23/05) respectively. The
Cologne Court of Appeal decided on the appeals lodged in both
proceedings by judgments of 25 March 2010. The proceedings have thus
lasted almost five years and five months (file No. 391/04) and
over five years and two months (file No. 8 O 23/05) for two levels of
jurisdiction.
A. Admissibility
- 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
- 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).
- 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).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument persuading
it to reach a different conclusion in the present case. The Court
observes that there is no indication that the conduct of the
proceedings at second instance before the Cologne Court of Appeal
failed to meet the “reasonable time” requirement under
Article 6 § 1. However, as regards the proceedings before the
Cologne Regional Court at first instance, the Court, while noting
that the case was of a certain complexity and that the applicant
contributed to the length of the proceedings to a certain extent,
cannot ignore that there have been several periods of delay
attributable to the Regional Court. It observes in this context that
the hearings of 21 April 2005 and 11 May 2006 were scheduled over
periods of approximately five months in advance in each case.
Following changes in the person of the judge rapporteur in 2007 which
led to further delays, the Regional Court ordered the taking of a
first expert opinion on 16 May 2007 more than two-and-a-half years
after the proceedings had been instituted. A second expert opinion
was ordered on 1 April 2008. Even though both expert opinions
had been the subject of an extensive exchange of written submissions
and objections by the parties, it was only on the occasion of the
hearing of 23 April 2009 that the parties were given the opportunity
to put questions directly to the expert with a view to expediting the
proceedings. 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
- 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
- The
applicant claimed EUR 282,524.72 in respect of pecuniary damage.
She further claimed just satisfaction in respect of non-pecuniary
damage for the excessive length of the proceedings which had caused
her chronic stress as well as health, psychological and social
problems and had ruined her financially. She left the amounts to be
awarded in this respect at the Court’s discretion.
As
regards the pecuniary damage, she argued that due to the length of
the proceedings and the fact that the real property in dispute could
not be rented out she suffered a loss of rent of EUR 1,300 per month
including interests at a rate of 12.5% amounting to EUR 106,870.83
for a period of five years. She claimed an additional loss of rent of
EUR 1,923 per month for the period from 2005 to 2008, amounting to
118,620.60 in total, on the ground that her involvement in the
proceedings and their financial implications prevented her from
renting out another property owned by her but not related to the one
in dispute. The applicant further alleged that due to the financial
problems encountered by her as a result of the proceedings she had to
sell a car below value causing her a loss of EUR 33,000 as well
as hunting equipment at an estimated value of EUR 7,000. She
finally claimed an amount of EUR 17,033.29 for diverse costs related
to bank loans, insurances, operating expenses etc.
- The
Government contested these claims. As regards the applicant’s
claims for pecuniary damages they argued that she failed to
demonstrate that these damages had been caused by the length of the
proceedings. They further submitted that in view of the circumstances
of the case, the granting of non-pecuniary damage was not
appropriate.
- The
Court finds that the applicant did not demonstrate that the alleged
pecuniary damage had actually been caused by the length of the
proceedings. In particular, it has not been established that the real
property could not be rented out after the applicant had taken
possession thereof. Furthermore, the Court does not discern any
causal link between the violation found and the pecuniary damages
alleged; it therefore rejects this claim. On the other hand, it
considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards her EUR 2,800
under that head.
B. Costs and expenses
- The
applicant also claimed costs for paper, postage and travel expenses
without specifying their total amount or whether they were related to
the proceedings before the domestic courts or the Court. Documentary
evidence was only provided with respect to costs related to the
proceedings before the Court.
- The
Government did not express an opinion on the matter.
- 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 documents in its possession and the above criteria, the Court
awards the applicant EUR 200 in this respect plus any tax that may be
chargeable to her.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
(i) EUR
2,800 (two thousand eight hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
200 (two hundred euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
