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FIFTH
SECTION
CASE OF OTTO v. GERMANY
(Application
no. 28348/09)
JUDGMENT
STRASBOURG
22
September 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Otto v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 30 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 28348/09) 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, Mr Rüdiger Albert Otto (“the applicant”),
on 26 May 2009.
2. The
applicant was represented by Mr H. Sauer and Mrs K. Sauer, lawyers
practising in Cologne. The German Government
(“the Government”) were represented by their Agent, Mrs
A. Wittling-Vogel, Ministerialdirigentin,
of the Federal Ministry of Justice.
- On
22 February 2010 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 of three Judges.
- The
applicant and the Government each filed observations on the merits of
the application (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946 and lives in Cologne.
- On
15 November 1989 the applicant brought civil proceedings against his
former partner of a civil-law partnership (Gesellschaft
bürgerlichen Rechts) to stop the compulsory enforcement of
certain cost orders (Kostenfestsetzungsbeschlüsse) issued
by the Cologne Regional Court in respect of previous proceedings
between them.
- On
29 November 1989 the Regional Court provisionally stayed the
enforcement of the cost orders. On 22 January 1990 the Cologne Court
of Appeal dismissed the defendant’s appeal against this
decision.
- On
4 December 1989 the applicant further extended his action.
- On
30 March 1990 the Regional Court held an early first hearing (früher
erster Termin) and announced a decision for 1 June 1990.
- On
8 May 1990 the applicant again further extended his action.
- On
1 June 1990 the Regional Court reopened the oral hearing and
scheduled a new oral hearing for 21 December 1990, which was
postponed at the applicant’s request and rescheduled for 8
February 1990.
- On
21 June 1990 and 21 August 1990 the applicant further extended or
modified his action.
- On
17 December 1990 the defendant lodged a counterclaim (Widerklage)
requesting the court inter alia to order the applicant to pay
him approximately DEM 702,600 (approximately EUR 360,000), concerning
claims resulting from the termination of their partnership in 1979.
- On
8 February 1991 the Regional Court held an oral hearing.
- On
12 April 1991 it commissioned an expert report on the applicant’s
damages caused by the enforcement measures.
- On
2 December 1991 the defendant suggested to separate the counterclaim
from the proceedings in order to speed up the proceedings.
On 8
January 1992 the applicant opposed a separation, whereupon the
Regional Court decided not to separate the proceedings.
- On
5 February 1992 the court appointed an expert after two other experts
had declared that they would not be in a position to prepare the
report. On 12 October 1992 the applicant submitted additional
information to the expert with a delay of three months. On 24 June
1993 the expert finalised his report of 75 pages.
- On
28 March 1994 the defendant challenged the expert for bias.
- On
8 July 1994 the Regional Court held another oral hearing and
announced a decision for 28 October 1994, which was later on
rescheduled for 16 December 1994.
- On
5 August 1994 the court rejected the defendant’s challenge for
bias. On 25 November 1994 the Cologne Court of Appeal quashed the
Regional Court’s decision and found that the expert had been
biased.
- On
16 December 1994 the Regional Court reopened the oral hearing.
- On
14 July 1995 the court held an oral hearing.
- On
17 November 1995 the Regional Court commissioned a fresh expert
report. On 23 December 1997 the expert delivered his report of
41 pages.
- On
7 November 1996 the defendant again suggested to separate the
counterclaim from the proceedings. On 26 November 1996 the applicant
opposed a separation.
- A
further hearing scheduled for 24 April 1998 was postponed twice.
First, because the applicant had further questions to the expert, and
later because the sitting judge was seconded to another court.
- On
6 November 1998 the court held an oral hearing.
- By
partial judgment of 5 February 1999 the Regional Court dismissed the
applicant’s action. The partial judgment comprised 32 pages. In
respect of the defendant’s counterclaim it commissioned an
expert report on the dissolution balance sheet
(Auseinandersetzungsbilanz) submitted by the defendant and
comprising more than 100 pages.
- The
applicant appealed against the partial judgment.
- On
30 December 1999 the Cologne Court of Appeal quashed the Regional
Court’s partial judgment of 5 February 1999 and remitted the
case to this court.
- A
hearing scheduled for 20 October 2000 was postponed to
12 January 2001 because of changes in the composition of
the Regional Court’s chamber. On 12 January 2001 the court held
an oral hearing and took evidence by hearing witnesses.
- On
3 May 2002 the Regional Court commissioned a further expert report on
the dissolution balance sheet submitted by the defendant.
- In
August 2002 the applicant asked for an extension of time-limit for
submissions by four weeks due to friendly settlement negotiations
which subsequently failed.
- On
31 March 2004 the expert finalised her report of 7 pages. On 7 April
2004 the court sent it to the parties for comments.
- On
7 January 2005 the Regional Court held another oral hearing.
- On
18 March 2005 it dismissed the applicant’s action, ordered him
to pay the defendant some EUR 5,800 and dismissed the remainder
of the counteraction. The judgment comprised 42 pages.
- Both
parties appealed to the Cologne Court of Appeal. The applicant was
granted an extension of the time-limit for reasoning his appeal
twice. On 1 July 2005 the applicant submitted his statement of
grounds for appeal and further extended his action.
- On
15 August 2005 the Court of Appeal scheduled an oral hearing for 27
April 2006, which was later on postponed to 16 May 2006.
- On
16 May 2006 the Court of Appeal held an oral hearing and announced a
decision, which was postponed several times.
- On
14 May 2007 the Court of Appeal scheduled another hearing for
11 October 2007, which was postponed to 18 October 2007.
- On
8 November 2007 the Cologne Court of Appeal quashed the Regional
Court’s judgment. It dismissed the applicant’s action and
ordered him to pay the defendant EUR 170,564 plus interest at the
annual rate of 4% from 3 January 1991. The judgment comprised 30
pages.
- On
8 December 2008 the Federal Court of Justice dismissed the
applicant’s request to be granted leave to appeal on points of
law.
II. RELEVANT DOMESTIC LAW
- According
to section 288 § 1 of the German Civil Code (Bürgerliches
Gesetzbuch) in force at the relevant time
any money debt must bear interest during the time of default.
According to section 291 of the German Civil Code the debtor must pay
interest on a money debt from the date when litigation is pending
onwards, even if he is not in default.
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
had been exceptionally complex. In this respect they referred to the
large number of damages claimed by the applicant, to the applicant
having extended his claims several times, to the defendant’s
counterclaim and to the fact that the relevant events dated back
several years. They further pointed out that three expert opinions
had to be obtained and that due to the volume and complexity of the
case it was difficult to find experts. The Government conceded that
due to the high value in dispute the proceedings were of some
importance to the applicant. Nevertheless, the applicant had
signalled in the course of the proceedings that bringing them to a
close promptly was not important to him. They stressed that the
applicant had contested a separation of the counterclaim from the
proceedings two times, but noted, however, that the Regional Court in
its sole discretion decided not to separate the proceedings. Finally,
the Government argued that the applicant had belatedly submitted
information to the experts and several times asked for the extension
of time-limits set by the domestic courts. Nevertheless, they
admitted that there had been delays attributable to the domestic
courts.
- The
period to be taken into consideration began on 15 November 1989 and
ended on 8 December 2008. It thus lasted 19 years and almost one
month for three levels of jurisdiction, including one remittal.
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 capable of
persuading it to reach a different conclusion in the present case.
- The
Court acknowledges that the case was factually and legally very
complex and takes note of the several expert opinions that had to be
obtained. However, the complexity of the case alone cannot explain
the overall length of the proceedings, which lasted more than 19
years for three levels of jurisdiction. As regards the applicant’s
conduct, the Court observes that even if there are delays
attributable to the applicant, it cannot be considered to have
decisively contributed to the total duration of the proceedings. As
regards the applicant’s extensions of his action and his
opposition to the separation of the counterclaim, the Court
emphasises that the former mainly took place in the very beginning of
the proceedings and that the decision not to separate the proceedings
lay in the Regional Court’s sole discretion. The Court also
notes that an applicant, in principle, cannot be held responsible for
availing himself of the procedural means at his disposal under German
law (see, mutatis mutandis, Ballhausen v. Germany, no.
1479/08, § 63, 23 April 2009). Against this background, the
Court finds that there were substantial periods
of inactivity or delay, which are solely imputable to the domestic
courts (see, in this context, among many other authorities, Süßmann
v. Germany, 16 September 1996, §
55, Reports of Judgments and
Decisions 1996 IV).
- 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 92,135.08 in respect of
pecuniary damage. He specified that an amount of EUR 90,135.76 was
attributable to the fact that due to the excessive length of the
domestic proceedings he had to pay higher default interest to the
defendant. He referred to the judgment of the Cologne Court of Appeal
(see paragraph 38 above) and the relevant domestic provisions (see
Relevant domestic law). An amount of EUR 1,999.32 related to
lawyer’s fees expended with a view to seeking compensation for
the aforementioned damage from the respondent Government before he
lodged his application with the Court. The applicant also claimed
just satisfaction in respect of non-pecuniary damage and left the
amount to be awarded to the Court’s discretion.
- The
Government did not express an opinion on the matter.
- The
Court observes that the aim and purpose of default interest is to
compensate the creditor for the disadvantages of not having benefited
from the money owed by the debtor during the default period, or, the
other way around, to skim off the debtor’s advantages of having
had that money at his disposal during the default period. In fact,
the applicant had to pay higher default interest not because of the
excessive length of the proceedings, but rather because he had
specific financial resources at his disposal for a longer period of
time. The Court finds that the applicant cannot be said to have
suffered pecuniary damage in this respect. Therefore, the Court
rejects this claim as well as the applicant’s related claim for
the lawyer’s fees expended in this connection.
On
the other hand, the Court considers that the applicant
must have sustained non-pecuniary damage as a result of the excessive
length of the proceedings which is not sufficiently compensated by
the finding of a violation. Ruling on an equitable basis, it awards
him EUR 16,800 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 2,819.75 for the
costs and expenses incurred before the Court. Referring to the
relevant provisions of the German Lawyers’ Fees Act
(Rechtsanwaltsvergütungsgesetz), he specified that an
amount of EUR 2,455.21 was not yet paid, but would be due in the
future. As regards an amount of EUR 364.54 the applicant submitted an
itemised fee note of his lawyer.
- 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 are
reasonable as to quantum. In the present case, the applicant partly
failed to substantiate that he actually incurred the costs claimed
(see, for example, Fetullah Akpolat v. Turkey, no. 22077/03,
§ 43, 15 February 2011). Regard
being had to the documents in its possession and to its
case-law, the Court considers it reasonable to award the sum
of EUR 364.54 for the proceedings before the Court.
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
16,800 (sixteen thousand and eight hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
364.54 (three hundred and sixty-four euros and fifty-four cents) 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 22 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M.
Zupančič
Deputy Registrar President
