FIFTH SECTION

CASE OF SCHÄDLICH v. GERMANY

(Application no. 21423/07)

JUDGMENT

STRASBOURG

24 June 2010

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

In the case of Schädlich v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Karel Jungwiert, President,
	Renate Jaeger,
	Mark Villiger, judges,
and StephenPhillipsDeputy Section Registrar,
Having deliberated in private on 31 May 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 Court declared the application partly inadmissible and decided to communicate the complaint concerning the length of the proceedings 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 remainder of the application to a Committee. It was also decided to rule on its admissibility and merits at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1953 and lives in Bautzen.
5.  The facts of the case, as submitted by the applicant, may be summarised as follows.
A.  Background to the case
6.  The applicant had been a member of the German Democratic Republic police service since December 1975. In 1990 he became an employee (Angestellter) of the police service of the Federal Republic of Germany and with effect from 1 January 1992 was appointed police officer in the capacity of civil servant on probation (Beamtenverhältnis auf Probe).
7.  On the occasion of a car accident that occurred on 8 August 1992 while the applicant was on duty, his shoulder and head were injured. The accident was recognised as an occupational accident by the relevant authorities. Due to his injuries the applicant was on sick leave until 21 March 1993. From 8 April 1994 he was certified permanently unfit for service by his doctor.
8.  By a letter dated 8 December 1994 the applicant was informed by the Dresden Police Headquarters (Polizeipräsidium) that it was intending to dismiss him from his duties on the ground that he lacked the necessary professional qualifications for his post.
9.  By a decision of 23 February 1995 his probationary period was extended until 31 December 1995.
10.  On the basis of a medical expert opinion obtained at the request of the Medical Service of the Dresden Police Headquarters on 27 January 1995, which established that the applicant was suffering from personality disorders and organic brain damage which were unlikely to be consequences of the said car accident, the Medical Service certified on 26 July 1995 that the applicant was permanently unfit for the police service and expressed its concerns regarding his appointment as a civil servant for life.
11.  On 2 August 1995 the applicant was informed that it was intended to dismiss him from the police service on the ground that he lacked the necessary physical fitness to carry out his duties. The applicant asked for the involvement of the District Staff Council (Bezirkspersonalrat) and pointed out that his state of health would justify his retirement. The District Staff Council approved the dismissal on 15 August 1995.
12.  On 24 August 1995 the Dresden Police Headquarters ordered the applicant’s dismissal on the ground that he was physically incapable of performing his functions as a police officer. It further ordered the immediate enforcement of its decision.
B.  The proceedings before the administrative courts
13.  By a letter dated 6 September 1995 the applicant objected to the Police Headquarters’ notice of dismissal, giving as a reason that his state of health was a consequence of an occupational accident and was no fault of his own.
14.  On 11 September 1995 he applied to the Dresden Administrative Court for reinstatement of the suspensive effect (Wiederherstellung der aufschiebenden Wirkung) of his objection in accordance with the relevant provisions of domestic law. The Dresden Police Headquarters thereupon lifted the order for the immediate enforcement of the dismissal order by letter dated 15 September 1995.
15.  By a decision of 26 February 1996, which was served on the applicant on 1 March 1996, the Dresden Police Headquarters dismissed the applicant’s objection of 6 September 1995 and reordered the immediate enforcement of the dismissal order of 24 August 1995. They found that the applicant’s incapacity was not a consequence of the said car accident but of unrelated physical and mental conditions and that he was thus not eligible for retirement and to claim pension benefits.
16.  On 18 March 1996 the applicant lodged a request for interim measures with the Dresden Administrative Court.
17.  On 27 March 1996 he brought an action against the Free State of Saxony with the Dresden Administrative Court.
18.  On 29 April 1996 the Administrative Court reinstated the suspensive effect of the action against the dismissal order of 24 August 1995. The Administrative Court found that there was no prevailing public interest that could justify the immediate enforcement of the dismissal.
19.  On a complaint by the Free State of Saxony, the Saxon Administrative Court of Appeal (Oberverwaltungsgericht) by a decision of 1 February 1999 amended the decision of the Administrative Court and restricted the suspension of the said decisions to the effect that the Police Department was obliged to provisionally continue salary payments to the applicant in an amount equal to his pension entitlements and for the rest confirmed their immediate enforcement.
20.  By decisions of 27 July 1999 and 9 October 2000 the Dresden Administrative Court ordered expert opinions on the applicant’s physical and mental condition, which were issued on 26 October 1999 and 22 November 2000 respectively.
21.  On 12 June 2001 a hearing took place. By judgment of the same day the Administrative Court set aside the dismissal order of 24 August 1995. The Administrative Court found that the applicant’s dismissal was unlawful and that he was entitled to retirement since his physical and mental disorders were a consequence of his occupational accident.
22.  On 31 August 2001 the Free State of Saxony lodged a request to be granted leave to appeal with the Dresden Administrative Court since there was no evidence that the applicant’s incapacity had been caused by the occupational accident. The Saxon Administrative Court of Appeal granted leave to appeal by decision of 16 April 2003 which was served on the applicant on 2 May 2003.
23.  On 24 September 2003 the Court of Appeal ordered a neurological and a psychological expert opinion and on 24 October 2005 a psychiatric expert opinion on the question as to whether the applicant’s mental disorders had been caused by the occupational accident of 8 August 1992. The expert opinions were rendered on 7 and 18 February 2004 and on 6 March 2006 respectively.
24.  On 10 July 2006 a hearing took place on the occasion of which the experts explained their findings.
25.  On 12 July 2006 the Court of Appeal set aside the judgment of the Dresden Administrative Court. It held that it was not established that the applicant’s physical and mental troubles were related to the accident and dismissed the applicant’s action.
26.  On 4 October 2006 the applicant lodged a complaint against the Court of Appeal’s refusal to grant him leave to appeal to the Federal Administrative Court.
27.  On 7 November 2006 the Federal Administrative Court (Bundesverwaltungsgericht) rejected the applicant’s complaint as inadmissible on the ground that the applicant had failed to substantiate his allegation that the proceedings had been flawed by procedural shortcomings that might have affected the decision of the Court of Appeal. The decision was served on the applicant’s counsel on 17 November 2006.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
28.  The applicant complained that the length of the proceedings before the administrative courts, in particular before the Dresden Administrative Court and the Saxon Administrative Court of Appeal 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...”
29.  The Government conceded that there had been delays in the proceedings which were attributable to the domestic courts and that the conduct of the applicant for whom the dispute was of particular importance had not significantly contributed to their length. The Government specified that while there was no indication that the length of the proceedings in connection with the applicant’s administrative appeal and the proceedings before the Federal Administrative Court failed to comply with the “reasonable time” requirement, there had indeed been delays of in total three years and one month in the proceedings attributable to the Dresden Administrative Court, a delay of eighteen months following the applicant’s application to be granted leave to appeal with the Saxon Administrative Court of Appeal and another period of at least fifteen months and three weeks attributable to this court during the subsequent appeal proceedings. However, the regrettable length of the proceedings had not only been due to the complexity of the case that had required the taking of several expert opinions with sometimes divergent results but in particular to an exceptional workload of the Dresden Administrative Court and the Saxon Administrative Court of Appeal as a consequence of subsisting staff shortages in the administrative court system in Saxony that had been newly established following German reunification.
30.  The period to be taken into consideration began on 6 September 1995, when the applicant lodged his administrative appeal and ended on 17 November 2006, when the decision of the Federal Administrative Court was served on the applicant. It thus lasted over eleven years and two months for one level of compulsory administrative appeal and three levels of jurisdiction.
A.  Admissibility
31.  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
32.  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 further reiterates that special diligence is necessary in employment disputes (Ruotolo v. Italy, judgment of 27 February 1992, Series A no. 230‑D, p. 39, § 17).
33.  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).
34.  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. As to the conduct of the proceedings, the Court accepts that there is no indication that the length of the proceedings in connection with the applicant’s administrative appeal and the proceedings before the Federal Administrative Court failed to comply with the “reasonable time” requirement under Article 6 § 1 of the Convention. The Court further accepts that the proceedings were of some complexity and necessitated the taking of several expert opinions at different levels of jurisdiction. However, these difficulties do not explain the considerable periods of inactivity by the Dresden Administrative Court and the Saxon Administrative Court of Appeal which are not contested by the Government. In this connection the Court also takes note of the Government’s submissions that the Dresden Administrative Court and the Saxon Administrative Court of Appeal were subject to an overload of work as a consequence of subsisting staff shortages in the newly constructed administrative court system in Saxony following German reunification. The Court recalls in this respect that it is for the Contracting States to organise their legal systems in such a way that their courts can guarantee to everyone the right to a final decision within a reasonable time in the determination of his or her civil rights and obligations (see Frydlender, cited above, § 45). While acknowledging that a temporary backlog of court business may not entail a Contracting State’s international liability if that State takes appropriate remedial action with the requisite promptness (see Klein v. Germany, no. 33379/96, § 43, 27 July 2000), the Court nevertheless notes that the applicant in the instant case first had recourse to the domestic courts in March 1996, more than five years after the reunification treaty entered into force. The proceedings lasted until 2006 and, as conceded by the Government, delays attributable to the domestic courts have repeatedly occurred throughout this period. The Court reiterates in this context that according to its established case-law, a chronic overload of court business cannot justify an excessive length of proceedings (see Gast and Popp v. Germany, no. 29357/95, § 75, ECHR 2000‑II).
35.  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.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
36.  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
37.  The applicant claimed just satisfaction in respect of non-pecuniary damage and left the amounts to be awarded at the Court’s discretion.
38.  The Government did not express an opinion on the matter.
39.  The Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards him EUR 4,000 under that head.
B.  Costs and expenses
40.  The applicant did not submit a claim for reimbursement of costs and expenses incurred before the domestic courts or the Court. Accordingly, the Court considers that there is no call to award him any sum on that account.
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 remainder of 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 4,000 (four thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable to him on this amount;
(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 24 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Karel Jungwiert
	Deputy Registrar	President