OTTO v. GERMANY - 28348/09 [2011] ECHR 1389 (22 September 2011)

JUDGMENT STRASBOURG 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 . . 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 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII