FIFTH SECTION

CASE OF SCHLIEDERER v. GERMANY

(Application no. 2651/07)

JUDGMENT

STRASBOURG

21 October 2010

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

In the case of Schliederer 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  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 A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
3.  On  the President of the Fifth Section decided to give notice of the application to the Government. In application of 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
4.  The applicant was born in 1959 and lives in Simbach am Inn.
5.  In November 1994, the applicant pressed criminal charges against her father, alleging several acts of sexual assault and rape in the 1970s. The Office of the Prosecutor initiated a criminal investigation against the father. It also commissioned a psychological expert report on the credibility of the applicant. On 6 September 1995 the Office of the Prosecutor discontinued the investigation, relying, inter alia, on the expert report, which had found several inconsistencies in the applicant’s account of events and which had come to the conclusion that doubt as to her credibility could not be excluded.
6.  In July 1995, the applicant requested compensation under the Damages for Victims of Acts of Violence Act (Gesetz über die Entschädigung für Opfer von Gewalttaten) (“the Act”). She claimed that she was suffering from the consequences of the acts committed by her father.
7.  On 16 January 1996 the Family Office dismissed the applicant’s request. It found that the allegations of the violent acts could not be confirmed with certainty and relied on the expert report which had been commissioned by the Office of the Prosecutor.
8.  On 7 February 1996 the applicant lodged an administrative objection against the Family Office’s refusal, which was dismissed on 20 August 1996. On 5 September 1996 the applicant brought an action with the Bayreuth Social Court.
9.  On 5 July 1997 the Social Court commissioned an expert report on the applicant’s credibility. The Social Court sent reminders to the expert on 22 October 1997, 10 February 1998, 10 March 1998, 12 May 1998; on 25 June 1998 the Social Court sent a last reminder setting a deadline until 15 August 1998. On 2 March 1999 the Social Court received the expert report dated 4 November 1998, in which the expert concluded that the applicant’s statements were credible as far as the essence of her allegations was concerned. On the basis of this expert opinion, the Office of the Prosecutor decided to renew the investigations against the father.
10.  Because of the institution of investigations, the Social Court adjourned the proceedings on 21 May 1999 until the criminal investigations had been concluded. The Office of the Prosecutor commissioned a further expert report to explain the two previous expert reports, which had each come to a different conclusion. This expert report concluded that the plausibility of the applicant’s statements could no longer be ascertained with sufficient reliability. Consequently, the Office of the Prosecutor discontinued the investigation on 4 October 2000. The Chief Public Prosecutor dismissed the applicant’s objection on 25 October 2000. During the criminal investigation, the Social Court on 9 December 1999, 16 March 2000, 11 September 2000 and 14 November 2000 requested a progress report from the Public Prosecutor’s office. Having been informed of the applicant’s waiver to file an appeal on 14 December 2000, the Social Court resumed the proceedings on 20 December 2000. On 27 March 2001 the Social Court continued its investigation into the facts.
11.  On 6 June 2001 the applicant’s counsel requested access to the case-file; the Social Court sent the file to counsel on 4 October 2001. On 28 February 2002 the applicant requested that two further witnesses be heard; on 8 May 2002 the Social Court informed the applicant that the reports of those two witnesses were already on the record.
12.  On 25 September 2002 the Social Court dismissed the applicant’s claim without conducting an oral hearing. Relying on the two expert reports which had found that the applicant’s credibility could no longer be determined with sufficient reliability, it held that the applicant had failed to prove that there had been a violent act against her.
13.  On 18 October 2002 the applicant appealed against the decision of the Social Court. On 30 January 2003 the Social Court of Appeal informed the parties that it appeared that the alleged violent acts had occurred prior to the coming into force of the Act. In such cases, according to the Act, the claim depended on whether applicants could demonstrate a 50% reduction in earning capacity as a result of the violent acts, and that they were indigent. In July 2003, the parties agreed that an expert report on the extent of the reduction in earning capacity be commissioned.
14.  On 26 November 2003 the expert submitted his report, in which he found that the applicant was suffering from, inter alia, a serious personality disorder of the borderline type, depression, and an eating disorder. However, the expert found that it was also likely that these disorders would have emerged without the alleged violent acts by her father. On 26 January 2004 the applicant objected to the expert report. On 16 August 2004 she requested that a new expert report be commissioned. On 15 September 2004 the Social Court of Appeal ordered the expert suggested by the applicant to file a report, yet the expert recused himself. On 19 November 2004 it ordered the applicant to name a new expert by 31 December 2004, which she did on 21 February 2005. On 24 May 2005 it announced a hearing for the 30 June 2005.
15.  On 30 June 2005 the Social Court of Appeal dismissed the appeal, noting the obviously particularly complex circumstances. Taking into account the various expert reports it held that the applicant had not demonstrated that her father had sexually abused her between 1971 and 1976. Moreover, the relevant expert report on the issue of reduction in earning capacity had found that it was not likely that her current disorders had been caused by the alleged violent acts. The judgment was served on the applicant on 26 October 2005.
16.  On 11 November 2005 the applicant, represented by a lawyer, lodged a request for leave to appeal with the Federal Social Court, alleging, inter alia, that two relevant witnesses had not testified, that she had not been sufficiently heard, and that the decision of the Social Court of Appeal had been a surprise decision. On 20 March 2006 the Federal Social Court declared the request inadmissible as it had not been sufficiently substantiated. It observed that the applicant had failed to demonstrate in what particular way the testimony of the two witnesses would have been relevant and necessary for the issues in question.
17.  On or about 22 April 2006 the applicant lodged a constitutional complaint, complaining about the social court proceedings and the criminal investigation. The Federal Constitutional Court severed the complaints, separating the social court proceedings from the criminal investigation.
18.  On 13 June 2006 the Federal Constitutional Court declared the constitutional complaint concerning the social court proceedings inadmissible; the decision was served on the applicant on 15 July 2006. It observed that the applicant had failed to comply with the principle of subsidiarity as she had not exhausted all effective remedies. In particular, she had failed to sufficiently substantiate her request with the Federal Social Court. It found that there was nothing to suggest that the Federal Social Court had set arbitrary or unreasonable requisites regarding the admissibility of the complaints. The Federal Constitutional Court noted that the applicant, represented by a lawyer, had specifically complained that the Federal Social Court should have taken evidence and reassessed it anew; she had thus failed to understand that the Federal Social Court was merely competent in respect of appeals on points of law.
19.  On 14 September 2006 the Federal Constitutional Court refused to admit the constitutional complaint concerning the criminal investigation, without providing any reasons.
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, so far as relevant, 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 submitted that, in view of the overall length of the proceedings and the periods of delay attributable to the domestic courts, it refrained from making a specific request to the Court.
22.  The relevant period to be taken into consideration begins with the date when the applicant filed his objection, a necessary first step before proceedings can be brought in the social courts (see Janssen v. Germany, no. 23959/94, § 40, 20 December 2001, and König v. Germany, judgment of 28 June 1978 Series A no.27, § 98). Therefore, the period to be taken into consideration began on 7 February 1996, when the applicant lodged an administrative objection against the Family Office’s decision, and ended on 15 July 2006 when the Federal Constitutional Court’s decision was served on the applicant. It thus lasted over ten years and five months for four levels of jurisdiction, including one administrative complaint.
A.  Admissibility
23.  The Government raised concerns about the fact that the Court had decided on  June 2006, at a time when the applicant’s constitutional complaint was still pending, a constitutional complaint was not an effective remedy for complaining about allegedly excessive length of civil proceedings (referring to Sürmeli v. Germany [GC], no. 75529/01, § 108, 2006‑VII).
24.  In the instant case the intervening event referred to by the Government was a judgment of the Court, of which the applicant cannot be expected to react upon immediately, as the proceedings before the Constitutional Court ended less than a week later than the Court’s judgment in Sürmeli v. Germany, on 13 June 2006, and the decision was served on the applicant on 15 July 2006. In these circumstances, the Court finds it appropriate to calculate the six-month period from the date on which the Federal Constitutional Court’s decision was served on the applicant.
25.  Accordingly, the Court finds that the applicant has complied with the six-month time-limit of Article 35 of the Convention. The Court also notes that the proceedings at issue for compensation under the Victims Compensation Act concern the determination of the applicant’s “civil rights” within the meaning of Article 6 § 1, which is therefore applicable (see, in particular, Glüsen v. Germany, no. 1679/03, §§60-62, 10 January 2008). Moreover, the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and 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 Government submitted that the proceedings before the Social Court and the Social Court of Appeal had lasted nine years, eight months and three weeks. Though both social courts, in general, continuously worked on and processed the case, the Government accepted that there had been several delays which were attributable to the courts. The Government acknowledged that during several periods (from 15 August 1998 to 2 March 1999, from 20 December 2000 to 27 March 2001, from 8 June 2001 to 4 October 2001, and from 1 March 2002 to 8 May 2002) the Social Court remained inactive (see paragraphs 9-11 above). Also, several periods of delay (from 21 February 2005 to 24 May 2005, and from 30 June 2005 to 26 October 2005) could be attributed to the Social Court of Appeal (see paragraphs 14 and 15 above). The Government also submitted that it was cognisant of the importance of the case for the applicant.
28.  The applicant submitted, inter alia, that the case had not been complex and that the social courts had considerably prolonged the proceedings.
29.  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).
30.  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. The Court accepts that the case, which was based on disputed facts some 30 years ago and which necessitated the opinion of experts to decide the case, was considerably complex. Nevertheless the Court finds that – as partly recognised by the Government – the social courts failed to diligently further the proceedings, in particular in view of the importance of the case to the applicant.
31.  Having regard to its case-law on the subject, the Court therefore 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.  ALLEGED VIOLATIONS OF ARTICLES 6 §§ 1 and 3, 13 AND 14 OF THE CONVENTION
32.  The applicant also complained under Article 6 that the proceedings before the social courts and the criminal investigation were generally unfair, in particular, that she had never been heard and that the social courts ignored several documents. She also complained that the Social Court adjourned the proceedings to wait for the outcome of the criminal proceedings. Under Article 6 § 3 (b), she complained that none of the witnesses she had proposed were given the opportunity to testify. Relying on Article 13, the applicant complained, inter alia, that the Federal Constitutional Court had refused to admit her constitutional complaint on the ground that she had not exhausted effective remedies. Finally, relying on Article 14, the applicant complained, inter alia, that she had been discriminated against as the Social Court of Appeal took into account her mother’s schizophrenia when assessing the applicant’s credibility.
33.  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 finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
34.  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
35.  The applicant claimed a total amount of 143,680 euros (EUR) and a monthly pension of EUR 576 in respect of pecuniary damage. In respect of non-pecuniary damage she claimed EUR 75,000 and a monthly pension of EUR 300.
36.  The Government submitted that there was no causal link between the length of the proceedings and the alleged pecuniary damage. As to the non‑pecuniary damage they considered that the award sought by the applicant was grossly excessive and left the amount to be awarded to the applicant for non-pecuniary damage to the Court’s discretion.
37.  The Court does not discern any causal link between the violation found (the breach of Article 6 §  1) and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, ruling on an equitable basis it awards the applicant EUR 2,100 in respect of non-pecuniary damage.
B.  Costs and expenses
38.  The applicant also claimed EUR 500 for the costs and expenses incurred before the Court.
39.  The Government did not express an opinion on the matter.
40.  The Court considers it reasonable to award the applicant the sum of EUR 500 under this head.
C.  Default interest
41.  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 excessive 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
(i)  EUR 2,100 (two thousand one hundred euros) in respect of non-pecuniary damage;
(ii)  EUR 500 (five 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 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