FIFTH SECTION

CASE OF EWALD v. GERMANY

(Application no. 2693/07)

JUDGMENT

STRASBOURG

21 October 2010

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

In the case of Ewald 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 PhillipsDeputy 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  against  lodged with the Court under Article 34 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 A. Wittling-Vogel, Ministerialdirigentin, Federal Ministry of Justice.
3.  On  the President of the Fifth Section decided to communicate the complaint concerning the length of the proceedings to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges.
4.  The applicant and the Government each filed observations on the merits (Rule 59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1957 and lives in Zweibrücken.
6.  On 24 February 2000 she suffered a heart attack. With regard to her treatment before and after this incident she accused her family practitioner of medical malpractice.
A.  Civil proceedings
7.  At the beginning of February 2002, after having been granted legal aid, the applicant lodged a claim of medical malpractice against her family practitioner with the Zweibrücken Regional Court.
8.  On 3 April 2002 the Regional Court ordered an expert report and on 31 May 2002 appointed the expert. By letter of 28 June 2002 the expert informed the court that due to illness he was unable to take up his work. On 21 August 2002 the court appointed a new expert who had been recommended by the medical association in late July.
9.  On 7 January, 4 and 21 February 2003 the court enquired about the report but did not receive an answer. On 15 April 2003 it ordered the expert to submit his report until 30 May 2003 on pain of a fine of 250 EUR. On 8 July 2003 the court again requested, to no avail, information from the expert as to the current state of affairs.
10.  On 13 February 2004 the court ordered the expert to return the files by 27 February 2004. On 20 April 2004, after it had received no response from the expert, the court once more ordered the return of the files. On 28 May 2004 the court unsuccessfully tried to contact the expert by telephone. On 15 June 2004 the court again ordered the return of the files, setting a deadline of 15 July 2004 and threatening to forward the case to the Office of the Public Prosecutor. On 22 October 2004 the parties were informed that the matter had been handed over to the Regional Court’s president for further action. On 28 October 2004 the court imposed on the expert all costs caused by his refusal to draw up the report and return the files. On 4 November 2004 the court notified the parties that the delivery of the files was now to be enforced. On 16 December 2004 the parties were informed that in the meantime the files had been returned to the court.
11.  On 28 June and 7 December 2005 the court held two hearings, in the course of which it heard eight witnesses.
12.  On 12 January 2006, after the single judge had referred the case to the chamber, a new expert report was ordered, to be submitted at the latest on 15 May 2006. On the same day the court also scheduled an oral hearing for 27 June 2006. On 7 May 2006 the expert submitted his report. On 12 June 2006 the court ordered a supplement to the report and rescheduled the hearing for 5 December 2006. On 4 December 2006 this hearing was cancelled.
13.  On 27 August 2007 a new hearing was scheduled for 8 January 2008. Upon request of defendant’s counsel the hearing was subsequently rescheduled for 19 February 2008.
14.  On 14 February 2008 the oral hearing was postponed until 4 March 2008. On 1 April 2008 the applicant applied for an amendment of the transcript of this hearing. The application was dismissed on 22 April 2008. On 9 May 2008 the court ordered another expert report. On 21 August 2008 the expert submitted his report. On 9 December 2008 the court held another hearing.
15.  On 9 February 2009 the Regional Court dismissed the applicant’s claim. The judgment was served on 26 February 2009.
16.  On 20 March 2009 the applicant lodged an appeal. After it had informed the applicant that her appeal was inadmissible, because it had not been filed by a lawyer, the Court of Appeal dismissed the appeal on 26 June 2009.
B. Criminal proceedings
17.  On 8 January 2002 the applicant pressed criminal charges against her family practitioner. On 15 January 2002 the proceedings were suspended pending the outcome of the civil proceedings. On 4 September 2006 the proceedings were discontinued in view of the death of the family practitioner.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
18.  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 ...”
19.  The Government did not contest that argument but emphasized that the subject matter had been complex. They also submitted that since the Regional Court had tried to retrieve the files from the second expert the delay caused by his behaviour should not entirely be attributed to them.
20.  The period to be taken into consideration began on 5 February 2002 and ended on 26 June 2009. It thus lasted seven years, four months and three weeks at two levels of jurisdiction.
A.  Admissibility
21.  The Court notes that this complaint 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
22.  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).
23.  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).
24.  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 with regard to the Regional Court’s problems to retrieve the file from the expert the Court reiterates that the responsibility for ensuring compliance with the requirements of Article 6 rests ultimately with the courts. Thus, when requesting expert opinions, the courts remain responsible for ensuring that the proceedings are not excessively prolonged (Volkwein v. Germany, no. 45181/99, § 39, 4 April 2002 and Bozlar v. Germany, no. 7634/05, § 23, 5 March 2009). As far as the applicant’s late submissions in 2006 are concerned the Court finds that any delay arising therefrom is negligible in view of the substantial delays caused by the conduct of the domestic courts.
25.  Having regard to the above considerations and 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 of the Convention.
II.  THE REMAINDER OF THE APPLICANT’S COMPLAINTS
26.  The applicant further complained under Article 6 of the Convention about the outcome of the proceedings at issue and the discontinuation of criminal proceedings instituted against the defendant doctor. Relying on Articles 13, 14, 17 and 18 of the Convention she also complained that the Regional Court had not considered facts submitted by her and had forwarded false data to the court appointed expert.
27.  In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. If follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
28.  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
29.  The applicant claimed 40,000 euros (EUR) in respect of non‑pecuniary damage.
30.  The Government did not express an opinion on the matter.
31.  The Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards her EUR 6,000 under that head.
B.  Costs and expenses
32.  The applicant also claimed EUR 3,334.70 for the costs and expenses incurred before the domestic courts, namely the cost and expenses incurred by the other side which she as the losing party is liable to pay. The applicant did not specify her costs incurred before the Court.
33.  The Government did not express an opinion on the matter.
34.  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.
35.  Since the applicant did not specify her claim as regards costs and expenses incurred before the Court no award can be made under this head.
C.  Default interest
36.  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 complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible;

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 6,000 (six thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable to the applicant in respect of the above amount;
(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;

4.  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