FIFTH SECTION

CASE OF TRÄXLER v. GERMANY

(Application no. 32936/09)

JUDGMENT

STRASBOURG

21 October 2010

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

In the case of Träxler v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a committee composed of:
	Mark Villiger, President,
	Renate Jaeger,
	Isabelle Berro-Lefèvre, judges,
and StephenPhillipsDeputy Section Registrar,
Having deliberated in private on 28 September 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 32936/09) 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 Petra Träxler (“the applicant”), on 10 June 2009.
2.  The applicant was represented by Mr U. Breitmeier, a lawyer practising in Rossdorf. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, Federal Ministry of Justice.
In accordance with Protocol 14, the application is assigned to a Committee of three Judges.
3.  The applicant and the Government filed further written observations (Rule 59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1955 and lives in Rossdorf.
A.  First stage of the proceedings
5.  On 4 July 1996, together with originally three and later on six of her siblings, the applicant filed an action by stages (Stufenklage) against the wife and heiress of their late father, seeking information regarding the estate, an affidavit as to the completeness of the information provided and, at the last stage, payment of their statutory shares (Pflichtteil).
6.  On 19 February 1997, following an oral hearing on 18 December 1996 and further submissions by the plaintiffs, the Darmstadt Regional Court decided to consult the relevant files from the probate court.
7.  The second oral hearing, scheduled for 17 December 1997, was rescheduled, because one of the judges had fallen ill; it took place on 10 February 1998. At this hearing the defendant was ordered to submit the extensive private expert opinion she had previously referred to. On 15 April 1998 the court proposed a friendly settlement which the parties did not accept. In June and July 1998 three additional plaintiffs joined the action.
8.  A third oral hearing, scheduled for 3 March 1999, was cancelled after the parties had consented to written proceedings. The date of delivery of a decision was set for 3 March 1999; it was subsequently postponed to 14 April 1999, on which date the Regional Court issued an informative decision (Hinweisbeschluss). On 30 June 1999 the court handed down a partial judgment, ordering the defendant to provide information on the estate.
9.  On 23 August 1999 the defendant appealed. The plaintiffs had to retain new counsel for the appeal proceedings. The time-limit for reasoning the appeal was extended once as was the time-limit for the plaintiffs for the submission of an answer to the appeal. In May 2001 the applicant retained again different counsel. At a hearing on 19 June 2001 three plaintiffs entered into a friendly settlement with the defendant. At the second hearing on 13 November 2001 the defendant withdrew the appeal.
B.  Second stage of the main proceedings
10.  On 14 November 2001 the applicant’s counsel applied to the Regional Court to proceed with the second and third stage of the action. On 19 December 2001 the reasoning in this regard was forwarded to the defendant’s counsel who, after having been granted two extensions of the time-limit, submitted the answer in April 2002. On 14 March 2002 another plaintiff joined the second stage of the action. On 24 July 2002, after the plaintiffs had submitted further observations within an extended time-limit, the Regional Court requested additional information. On 21 August 2002 the applicant and another plaintiff extended their claim. On 16 September 2002 the fourth plaintiff joined the second stage of the action. On 2 December 2002 the plaintiffs submitted further observations.
11.  On 18 December 2002 an oral hearing was scheduled for 26 March 2003. On 24 March 2003 the Regional Court cancelled the hearing and announced a further informative decision which was issued on 10 June 2003; the time-limit for additional observations was 31 July 2003. After an extension of this time-limit for the defendant the parties submitted their observations on 10 July 2003 and 28 August 2003 respectively.
12.  On 1 September 2004, following an oral hearing on 17 March 2004, the Regional Court requested further information by 30 September 2004. On 24 November 2004 the Regional Court ordered three expert opinions. On 29 December 2004 the applicant and two other plaintiffs applied for that evidence order to be amended. On 25 February 2005 new counsel for the defendant intervened, also applied for an amendment of the evidence order and declared a partial confession. On 20 May 2005 the Regional Court handed down a partial judgment by confession (Teilanerkenntnisurteil).
13.  On 27 May 2005 the court files were sent to the first expert who submitted his report on 7 September 2005. On 28 October 2005 the applicant and two other plaintiffs submitted a list of questions for the expert. On 30 January 2006 the Regional Court advised the plaintiffs that since the list of questions had been prepared by the plaintiffs themselves despite mandatory representation, there were doubts as to whether they could be used. On the same day the court also forwarded the files to the second expert. On 30 January 2006 the applicant and two other plaintiffs again submitted a list of questions, this time prepared by counsel. On 31 May 2006 the Regional Court ordered the defendant to provide the second expert with missing documents. On 26 October 2006 the second expert submitted his report to which the defendant objected on 29 November 2006. On 14 December 2006 the court forwarded the files to the third expert. On 10 January 2007 the applicant and two other plaintiffs personally submitted observations regarding the second expert opinion. On 20 July 2007 the third expert submitted his opinion. On 28 August 2007 and 22 October 2007 the applicant’s counsel requested to have the experts heard. On 14 November 2007 the Regional Court advised the parties that it preferred to order written supplements from the experts. It further reiterated its doubts regarding submissions by the plaintiffs themselves instead of by counsel.
14.  On 11 December 2007 the court was notified that the applicant had retained new counsel. In January 2008 the applicant’s new counsel inspected the files. On 11 February 2008 the first expert was asked to supplement his report. On 26 March 2008 he submitted the supplement.
C.  Legal aid proceedings
15.  On 14 November 2001 the applicant and another plaintiff, represented by the same lawyer, applied for legal aid.
16.  On 24 November 2004 the Regional Court granted legal aid for the third stage of the action. On 20 May 2005 the court of its own motion partially amended the legal aid decision. On 8 June 2005 the applicant complained about this amendment which was thereupon again amended on 29 June 2005.
17.  On 25 February 2008 the applicant and one other plaintiff, who both had retained the same new lawyer at the end of 2007, requested to have that lawyer appointed as their legal aid lawyer. On 25 April 2008 they were advised that certain conditions had to be met to appoint their new representative. On 25 August 2009 their request was rejected. On 4 September 2009 this decision was appealed. On 2 November 2009 the Court of Appeal requested further documents from the applicant who submitted them personally on 5 December 2009. On 11 January 2010 the Court of Appeal quashed the decision of 25 August 2009 and ordered the Regional Court to appoint legal aid counsel for the applicant and the other plaintiff, however, not the lawyer retained by them. On 25 January 2010 the applicant and the other plaintiff were requested to name a new lawyer within three weeks. On 4 February 2010 the applicant requested an extension of this time-limit. On 19 April 2010 a new lawyer indicated that he would be willing to represent the applicant.
D.  Further proceedings initiated by the applicant
18.  On 6 May 1999 the applicant submitted her first disciplinary complaint in view of the length of the proceedings which she reiterated on 20 February 2006.
19.  On 7 March 2002 the applicant and another plaintiff requested the court to fix a penalty payment because the defendant had allegedly not complied with the judgment of 30 June 1999.
20.  On 15 October 2008 the applicant lodged a motion for bias against the judge rapporteur who on 20 October 2008 submitted her official statement. On 13 January 2009 the motion was dismissed. On 30 January 2009 the applicant objected. On 14 May 2009 the objection was dismissed.
21.  On 18 August 2008 the Public Prosecutor’s Office requested the files in view of criminal charges pressed by the applicant. The files were returned on 1 September 2008.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
22.  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 ...”
23.  The Government did not contest this argument but emphasized that the subject matter of the proceedings with several plaintiffs and extensions of the plaintiffs’ claim was factually and legally very complex. They also submitted that the applicant, in particular her frequent change of counsel as well as the observations submitted by her personally despite mandatory representation by counsel contributed considerably to the delay.
24.  The period to be taken into consideration began on 4 July 1996 with the lodging of the action and has not yet ended. It has thus lasted thirteen years, eleven months and two weeks at two levels of jurisdiction.
A.  Admissibility
25.  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
26.  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).
27.  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).
28.  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. Having regard to its case-law on the subject, the Court, while also taking into account the complexity of the case as well as the substantial delays attributable to the applicant, considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
29.  There has accordingly been a breach of Article 6 § 1.
II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
30.  Further, the applicant complained that she had not had an effective remedy at her disposal to complain about the length of the proceedings. She alleged a violation of Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
31.  The Government did not contest that argument but submitted that work on a new draft bill in this regard was underway.
32.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
33.  The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). In the present case, having regard to its conclusion with regard to the excessive length of the proceedings, the Court considers that the applicant had an arguable claim of a violation of Article 6 § 1.
34.  The Court reiterates that according to its recent case-law there is no effective remedy under German law capable of affording redress for the unreasonable length of civil proceedings (see  [GC], no. 75529/01, §§ 103-108, ECHR 2006-VII).
35.  Accordingly, the applicant did not have at her disposal an effective remedy within the meaning of Article 13 of the Convention.
36.  There has therefore been a violation of Article 13 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
37.  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
38.  The applicant claimed 469,832.00 euros (EUR) in respect of pecuniary damage, comprising her alleged statutory share plus default interest. She further claimed EUR 56,000.00 in non-pecuniary damage.
39.  The Government contested the claim for pecuniary damage and left the issue of non-pecuniary damage to the discretion of the Court.
40.  The Court observes that the pecuniary damage alleged by the applicant was not caused by the length of the proceedings before the domestic courts and therefore does not discern any causal link between the violation found and the pecuniary damage alleged. Accordingly, it considers that no award can be made under this head.
41.  As to non-pecuniary damage the Court considers that the applicant must have sustained non-pecuniary damage as a result of the excessive length of the proceedings. Ruling on an equitable basis and having regard to the nature of the Convention violations it has found, it awards her EUR 10,000.00 under that head.
B.  Costs and expenses
42.  The applicant, submitting documentary evidence, claimed EUR 5,273.06 for costs and expenses incurred before the domestic courts and EUR 5,842.90 for costs and expenses incurred before this Court. The latter sum includes EUR 916.30 for an expert opinion on the prospects of success of an application to this Court and lawyer’s fees of EUR 4,926.60. The lawyer’s fees are based on an agreed upon hourly rate of EUR  115.00 (plus tax) and 36 hours of work, including 4 hours for the preparation of the expert opinion.
43.  The Government contested these claims and maintained that there was no causal connection between the costs and expenses claimed for the proceedings before the domestic courts and the duration of the proceedings.
44.  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 are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers that the applicant has not established that the costs and expenses claimed for the proceedings before the domestic courts were incurred in order to seek prevention or rectification of the specific violation caused by the excessive length of the proceedings. However, seeing that in length of proceedings cases the protracted examination of a case beyond a “reasonable time” involves an increase in the applicants’ costs (see, among other authorities, Sürmeli v. Germany [GC], no. 75529/01, § 148, ECHR 2006‑VII), it finds it reasonable to award EUR 500 under this head. The Court further considers it reasonable to award the sum of EUR 4,379.20 covering lawyer’s fees for the proceedings before the Court. However, the Court, considering them not necessarily incurred, rejects the claim regarding the expert opinion as well as the claim for EUR 547.40 invoiced for counsel’s preparatory work for that expert opinion.
C.  Default interest
45.  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 that there has been a violation Article 13 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months
(i)  10,000 EUR (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  4,879.20 EUR (four thousand eight hundred seventy-nine euros and twenty cents), plus any tax that may be chargeable, for costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  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 	President