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You are here: BAILII >> Databases >> European Court of Human Rights >> ECKLE v. GERMANY (ARTICLE 50) - 8130/78 [1983] ECHR 8 (21 June 1983) URL: http://www.bailii.org/eu/cases/ECHR/1983/8.html Cite as: (1991) 13 EHRR 556, [1983] ECHR 8

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In the Eckle case,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court (*), as a Chamber composed of the

following judges:

_______________

(*) Note by the registry: In the version of the Rules applicable

when proceedings were instituted. A revised version of the Rules

of Court entered into force on 1 January 1983, but only in respect

of cases referred to the Court after that date.

_______________

Mr. R. Ryssdal, President,

Mr. Thór Vilhjálmsson,

Mr. W. Ganshof van der Meersch,

Mr. L. Liesch,

Mr. J. Pinheiro Farinha,

Mr. L.-E. Pettiti,

Mr. R. Bernhardt,

and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,

Deputy Registrar,

Having deliberated in private on 22 March and on 25 and 26 May 1983,

Delivers the following judgment, which was adopted on the last-

mentioned date, on the application in the present case of Article 50

(art. 50) of the Convention:

PROCEDURE AND FACTS

1. The Eckle case was referred to the Court on 18 May 1981 by the

European Commission of Human Rights ("the Commission"). The case

originated in an application (no. 8130/78) against the Federal

Republic of Germany lodged with the Commission on 27 September 1977 by

two German nationals, Mr. Hans Eckle and his wife Marianne.

2. By a judgment of 15 July 1982, the Court found a breach of

Article 6 § 1 (art. 6-1) of the Convention in that the applicants had not

received a hearing within a reasonable time (Series A no. 51, point 2 of

the operative provisions and paragraphs 71-95 of the reasons, pp. 32-40).

The only outstanding matter to be settled is the question of the

application of Article 50 (art. 50) in the present case. Accordingly, as

regards the facts the Court will confine itself here to giving the

pertinent details; for further particulars, reference should be made

to paragraphs 9 to 60 of the above-mentioned judgment (ibid.,

pp. 8-28).

3. At the hearings on 22 March 1982, counsel for the applicants

stated that, should the Court find a violation of the Convention, his

clients would be claiming just satisfaction under Article 50 (art. 50)

for the prejudice suffered as a result of the unreasonable length of

the proceedings and possibly for legal costs; he did not, however,

quantify their claims. The Government of the Federal Republic of

Germany ("the Government") did not take a stand on the matter.

In its judgment of 15 July 1982, the Court reserved the whole of this

question. The Commission was invited to submit to the Court, within

the coming two months, its written observations and, in particular, to

notify the Court of any friendly settlement at which the Government

and the applicants might have arrived (see point 3 of the operative

provisions and paragraph 96 of the reasons, ibid., p. 40).

4. After one extension of the above-mentioned time-limit by the

President of the Chamber and in accordance with his Orders and

directions, the registry received:

- on 15 October 1982, 19 November 1982 and 17 January 1983, through

the Secretary to the Commission, the Delegate's and the applicants'

respective observations;

- on 28 October 1982, 14 December 1982 and 14 February 1983, the

Government's comments.

These documents revealed that no friendly settlement had been reached.

5. By letter dated 6 October 1982, which was received at the

registry six days later, the lawyer for Mr. and Mrs. Eckle informed

the Registrar that he was no longer representing them; on 12 October,

they instructed Mr. von Stackelberg as their lawyer.

6. Mr. L. Liesch, substitute judge, took the place of

Mr. D. Evrigenis, who was prevented from taking further part in the

consideration of the case (Rules 22 § 1 and 24 § 1 of the

Rules of Court).

7. After consulting, through the Deputy Registrar, the Agent of the

Government and the Delegate of the Commission, the Court decided on

25 May 1983 that there was no call to hold hearings.

CLAIMS MADE BY THE APPLICANTS

8. The claims submitted by the applicants may be summarised as

follows:

(a) Mr. Eckle

In his observations of October 1982, the applicant asked the

Commission to request the Court to defer judgment until the Federal

Court of Justice (Bundesgerichtshof) had ruled on an action

(Amtshaftungsklage) brought by him against the Land of Rhineland-

Palatinate to recover compensation for all damage resulting from the

failure to comply with the requirements of Article 6 § 1

(art. 6-1). Having been invited on 20 October by the President of the

Chamber to file the applicant's claims without prejudice to the

decision to be taken on the request for deferment, the Commission

forwarded the said claims to the registry on 19 November.

Mr. Eckle sought to recover

(i) for material loss allegedly suffered on the professional,

economic and financial level:

- DM 5,049,284 and

- 19 per cent annual interest on the sum of DM 49,284;

(ii) for non-pecuniary damage:

- DM 703,124.50;

(iii) for costs and expenses:

- DM 241,482.40, on a provisional estimate,

- release from joint and several liability (Befreiung aus der Mithaft)

to pay the sum of DM 17,193.57 (court costs),

- 12 per cent annual interest on DM 16,000.

(b) Mrs. Eckle

Mrs. Eckle claimed

(i) for material loss allegedly suffered on the professional,

economic and financial level:

- DM 844,535.64;

(ii) for non-pecuniary damage:

- DM 421,875;

(iii) for costs and expenses:

- DM 93,691.45, on a provisional estimate,

- release from joint and several liability to pay the sum of

DM 17,193.57 (court costs),

- 12 per cent annual interest on DM 26,007.60.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

9. The Government requested that the Court,

"at its discretion but orientating itself by the [Government's]

observations, assess satisfaction for the necessary and reasonable

legal costs actually incurred by the applicants for the prevention of

the violation found, and, for the rest, reject the claims preferred".

AS TO THE LAW

I. Request to defer judgment

10. Article 50 (art. 50) of the Convention reads as follows:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the present Convention, and if the internal law of the said Party

allows only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

11. In his initial observations, Mr. Eckle requested that the

proceedings regarding him be suspended until the Federal Court of

Justice had given its ruling on an action he had brought in 1964

before the Trier Regional Court (see paragraph 8 above). In his

submission, the European Court could only apply Article 50

(art. 50) once the domestic courts' final decision on reparation had

been delivered.

12. This submission, whilst not commented on by the Commission, was

contested by the Government, whose argument ran as follows.

Following the dismissal of his appeal on 4 March 1981 by the Koblenz

Court of Appeal (Oberlandesgericht), Mr. Eckle has up till now taken

no steps to expedite the examination of his petition for review on

points of law (Revision); on the contrary, he has several times asked

the Federal Court to extend the time-limit for the filing of his

supporting written pleadings, relying on the need to await the outcome

of the proceedings pending at Strasbourg. Furthermore, the object of

his action for damages is only in part the same as that of the

Strasbourg proceedings, in that the former is concerned solely with

the criminal prosecutions brought in Trier. Finally, the European

Court and the Federal Court perform their functions on different

levels and independently of one another, even though an award made by

the first deciding court can be taken into account by the other.

13. The Court would point out that Article 50 (art. 50) of the

Convention empowers it to afford just satisfaction to Mr. Eckle on

condition that, inter alia, "the internal law" of the Federal Republic

of Germany "allows only partial reparation to be made for the

consequences" of the breach found by the judgment of 15 July 1982.

This is precisely the case here: for when proceedings are continued

beyond the "reasonable time" laid down in Article 6 § 1 (art. 6-1), the

intrinsic nature of the wrong prevents complete reparation (restitutio

in integrum). This being so, the only claim the person concerned can

make is for just satisfaction. Even if an applicant has been able to

bring such an action before a court in the respondent State, the Court

is not bound to reject the claim put before it for just satisfaction

(see the De Wilde, Ooms and Versyp judgment of 10 March 1972, Series A

no. 14, pp. 8-9 and 10, §§ 16 and 20; the König judgment of

10 March 1980, Series A no. 36, pp. 14-15, § 15).

14. Nonetheless, where the victim of a breach found by the Court

chooses first to seek compensation under this head within the domestic

legal order, there is in principle nothing to preclude the Court from

deferring judgment until delivery of the final decision by the

national court, especially if the applicant has so requested. The

requirements of the proper administration of justice may even militate

in favour of such a course of action in certain circumstances.

However, Mr. Eckle has furnished no details as to the state of the

proceedings he has taken in Germany. His observations simply disclose

that his action is directed against the Land of the Rhineland-

Palatinate and was instituted before the Trier Regional Court on

16 April 1964, that is almost three years before the bringing of the

prosecutions in Cologne - a town situated in North Rhine-Westphalia -

(see the above-mentioned Eckle judgment, p. 19, § 37) and more

than thirteen years before the judgment delivered at Strasbourg on

15 July 1982; this action called on the Regional Court to hold the

Land liable for the damage allegedly caused to Mr. Eckle by the

relevant Trier authorities in conveying to his creditors the unfounded

suspicion that he was defrauding them.

According to the undisputed information supplied by the Government,

Mr. Eckle had his appeal dismissed on 4 March 1981, petitioned for a

review on points of law on 27 April 1981 and filed his supporting

written pleadings on 30 September 1982.

In these circumstances, it is difficult to discern how his action

could have in view the reparation of the prejudice resulting from the

two-fold failure to comply with the "reasonable time" requirement, as

found by the Court in its judgment of 15 July 1982. Consequently, the

suspension suggested by the applicant in October 1982 would not

contribute to, but would rather hinder, the proper administration of

justice. Moreoever, he did not revert to the matter when submitting

his quantified claims in November 1982 and January 1983 in response to

the invitation made to him by the Registrar on the instructions of the

President.

Accordingly, the Court rejects the request for deferment of judgment.

II. Application of Article 50 (art. 50)

15. The applicants sought just satisfaction for material loss,

non-pecuniary damage and legal costs.

A. Material loss

16. Mr. Eckle alleged a loss of earnings of 5 million marks

because of the forced sale of at least 250 building plots, in that at

the time of his imprisonment and prosecution (from 18 March 1967 until

11 January 1974) his firm was out of business, which prevented him

from disposing of the plots on the basis of freely negotiated

agreements.

He further claimed reimbursement of DM 49,284 plus 19 per cent annual

interest; he was obliged, so he asserted, to borrow this amount for

payment to the Federal Social Insurance Fund for Salaried Employees

(Bundesversicherungsanstalt für Angestellte) in order to maintain his

pension rights in respect of the years 1956 to 1973 and the year 1981.

17. For her part, Mrs. Eckle contended that if the Trier

proceedings had been conducted with the necessary diligence, she would

have been able to commence her professional activities in 1964 instead

of on 1 December 1974 and so able as from 1967 to earn profits similar

to those she made in 1980 as an insurance agent. Asserting that she

had lived without means from the moment of her husband's first arrest

on 18 March 1967, she assessed her losses as follows: DM 598,126 for

the period from 19 March 1967 to 30 November 1974, plus DM 246,409.64

for the period from 1 December 1974 to the end of 1979, that is a

total of DM 844,535.64.

18. In the submission of the Government, all these various claims

should be rejected, notably because of the absence of any causal link

between the material prejudice allegedly suffered and the violation

found by the Court. The Government's argument may be summarised as

follows.

Mr. Eckle would appear to be proceeding on the assumption that if the

national authorities had complied with Article 6 § 1 (art. 6-1), he would

have been able to continue the business activities in respect of which

he had been prosecuted. However, the judgment of 15 July 1982 did not

in the least affect his criminal conviction. In addition, he would in

any event have been obliged to pay contributions to the Federal Social

Insurance Fund.

With regard to Mrs. Eckle, she was hardly prevented from practising

her profession except during the hearings before the Trier Regional

Court and thereafter when serving the prison sentence imposed on her

by the Saarbrücken Regional Court. Here again these were lawful

measures which were unaffected by the Court's judgment and which did

not give rise to any entitlement to compensation.

19. The Delegate of the Commission expressed a similar viewpoint.

He considered in particular that the applicants had not shown any

causal connection between their claims and the breach of Article 6 § 1

(art. 6-1).

20. The Court shares this opinion.

The Court's judgment of 15 July 1982, whilst pronouncing the length of

the proceedings taken against the applicants to be unreasonable, did

not in any manner hold, or carry the implication, that their

prosecution, conviction and imprisonment were also in breach of the

Convention. The sole matter to be taken into consideration is thus

the prejudice possibly entailed by the fact of the two proceedings in

question having lasted beyond a "reasonable time".

Yet, the alleged financial losses of Mr. and Mrs. Eckle result from

the very existence and outcome of the prosecutions brought against

them. There is nothing in the evidence submitted to support the view

that the asserted damage was attributable to the failure to comply

with the requirements of Article 6 (art. 6).

Accordingly, no compensation is recoverable for material loss.

B. Non-pecuniary damage

21. Asserting that the Trier proceedings could have been

terminated by the end of 1963, the applicants concluded that the

unreasonable length of proceedings amounted to fourteen years and

three weeks (1 January 1964 - 23 January 1978). They also stressed

that, having regard to the overlapping of the proceedings in Cologne

(March 1967 - September 1977) and in Saarbrücken (end of 1963 -

April 1972), they were subjected to continuous prosecution in three

criminal cases.

On this basis, they sought as compensation for non-pecuniary damage a

lump sum assessed at a yearly rate of DM 50,000 for Mr. Eckle and

DM 30,000 for his wife. The explanation given by Mr. Eckle for this

difference was that during the relevant period he was, so he

maintained, arbitrarily deprived of his liberty for six and a half

years. He claimed under this head DM 703,124.50 and his wife

DM 421,875.

22. The Government disputed that the Trier proceedings could have

been terminated by the end of 1963. They further pointed out that the

period referred to by the applicants included phases which, in the

Government's submission, could not on any basis be treated as

relevant, namely the days of the trial hearings before the Saarbrücken

and Trier Regional Courts, the time spent by Mr. Eckle in custody on

remand and the time during which each applicant was serving his or her

prison sentence subsequent upon conviction in Saarbrücken. The

amounts claimed were, moreoever, preposterous. Finally, so the

Government argued, the acknowledgment by the domestic courts of the

breach of the Convention, the mitigation of the sentences imposed in

Trier and the discontinuance of the Cologne proceedings provided the

applicants with just compensation.

23. In the opinion of the Delegate of the Commission, the criminal

prosecutions brought must have constituted a source of some anxiety

for both Mr. and Mrs. Eckle and hence caused them a certain degree of

non-pecuniary damage. Nevertheless, the Delegate considered the sums

claimed to be out of all proportion. Having regard to the various

factors present, he suggested an award of modest compensation.

24. The applicants themselves, it has to be pointed out, did not

allege that the unreasonable length of the proceedings in question

provoked in them feelings of anxiety and distress. Moreover, at the

time they evinced no particular concern to have the proceedings

conducted as speedily as possible (see the above-mentioned Eckle

judgment, pp. 36 and 38, §§ 82 and 90).

The fact of exceeding the "reasonable time" must nonetheless have

exposed them to some disadvantages and inconvenience. It should

however be recalled that the Trier Regional Court, according to the

grounds given in its decisions, mitigated the sentences in view of the

inordinate length of time that had elapsed and that the Cologne

Regional Court ordered the discontinuance of the proceedings (ibid.,

pp. 16, 17, 18 and 27, §§ 27, 33, 35, 36 and 55); although these

circumstances did not cause Mr. and Mrs. Eckle to cease to be

"victims" within the meaning of Article 25 (art. 25), they are factors

that must be taken into consideration in assessing the extent of the

injury allegedly suffered (ibid., pp. 30-32, 38, 39 and 40,

§§ 66-70, 87, 88, 94 and 95). In addition, as was rightly observed by

the Delegate of the Commission, it cannot be overlooked that they were

charged with serious acts of fraud committed to the detriment of,

amongst others, persons lacking substantial financial resources and

that the Trier Regional Court imposed heavy prison sentences on them

(ibid., pp. 15-16 and 17, §§ 17 and 33).

Taking these factors together and on an equitable basis, as is

required by Article 50 (art. 50), the Court considers that the

finding of a violation contained in the judgment of 15 July 1982 has

already furnished sufficient just satisfaction, for the purposes of

Article 50 (art. 50), in respect of the alleged non-pecuniary injury

(see, mutatis mutandis, the Corigliano judgment of 10 December 1982,

Series A no. 57, p. 17, § 53).

C. Costs and expenses

1. Introduction

25. The applicants claimed recovery of the costs and expenses

occasioned by all the various remedies and defence measures employed

by them since the end of 1963, the date on which, in their contention,

the Trier proceedings could have ended.

According to the settled case-law of the Court, to be entitled to an

award of costs and expenses under Article 50 (art. 50), the injured

party must have incurred them in order to seek, through the domestic

legal order, prevention or redress of a violation, to have the same

established by the Commission and later by the Court or to obtain

reparation therefor (see the Minelli judgment of 25 March 1983,

Series A no. 62, p. 20, § 45). Furthermore, the Court has to be

satisfied that the costs and expenses were actually incurred, were

necessarily incurred and were also reasonable as to quantum (ibid.).

2. Costs and expenses incurred in the Federal Republic of Germany

26. The Court will first examine in turn the claims of each

applicant as to his or her costs and expenses in the Federal Republic

of Germany.

(a) Mr. Eckle

27. Under this head, Mr. Eckle sought in total DM 226,827.40 and

release from joint and several liability to pay the sum of

DM 17,193.57, together with interest of 12 per cent on DM 16,000.

He reserved the right to quantify certain other claims.

The Government could agree to DM 495.59; the Delegate of the

Commission considered that Mr. Eckle was entitled to recover DM 3,525,

or DM 4,791 provided he could prove payment of the difference between

these two amounts.

28. The Court rejects the following items as unconnected with the

violation found or even with the relevant facts of the case :

- agreed fees of Mr. von Stackelberg (advice "in the criminal

proceedings" between July 1964 and July 1968): DM 50,000;

- agreed fees of Mr. Bungartz (imprisonment of the applicant in the

Saarbrücken, Trier and Cologne proceedings): DM 12,000;

- agreed fees of Mr. von Stackelberg (various steps taken in the

Saarbrücken proceedings): DM 42,000;

- prosecution costs (DM 54,024.84) and release from joint and several

liability (DM 17,193.57) in the Trier proceedings;

- agreed fees and disbursements of Mr. von Stackelberg (advice

regarding detention on remand, Trier Regional Court): DM 2,321;

- agreed fees and disbursements of Mr. von Stackelberg (appeal against

the continuation of the detention on remand, decided by the Trier

Regional Court on 1 October 1971): DM 1,266;

- agreed fees of Mr. von Stackelberg (constitutional complaint against

the decision of 1 July 1971 by the Koblenz Court of Appeal refusing

the installation of a television set in the applicant's prison cell):

DM 2,500;

- agreed fees of Mr. von Stackelberg (constitutional complaint against

the decision by the Koblenz Court of Appeal refusing to grant the

applicant parole in order to participate in the civil proceedings):

DM 3,000;

- agreed fees of Mr. Meinecke (detention on remand in the Cologne

proceedings; 21 December 1974): DM 5,296.10;

- fees and disbursements of Mr. Meinecke (seizure of documents;

17 April 1970): DM 952.86;

- agreed fees of Mr. von Trützschler (arrest warrant; seizure of

documents): DM 3,000;

- agreed fees of Mr. von Stackelberg for four constitutional

complaints (refusal to nominate Mr. Becker as officially appointed

defence lawyer; detention on remand; levy of distress in respect of

payment of court costs; adjournment of civil proceedings):

DM 9,981.50;

- the following non-quantified claims: court costs in the Saarbrücken

and Cologne proceedings; costs of the action brought against the Land

of Rhineland-Palatinate; costs of the proceedings regarding the Eckle

firm's being struck off the register.

(i) Lawyer's fees and disbursements for a constitutional complaint

against the decision of 25 November 1971 by the Koblenz Court of

Appeal maintaining Mr. Eckle's detention on remand

29. Mr. Eckle sought recovery of DM 1,266 for the agreed fees and

disbursements of Mr. von Stackelberg who had on his behalf,

on 7 January 1972, challenged before the Federal Constitutional Court

a decision of 25 November 1971 by the Koblenz Court of Appeal ordering

his continued detention on remand.

The Government argued that this claim should be rejected since it did

not relate to a complaint against the length of the proceedings as

such.

In the view of the Delegate of the Commission, on the other hand, the

sum in question should be taken into consideration provided the

applicant could adduce proof of its payment.

30. The Court does not concur with the view expressed by the

Delegate.

Admittedly, the applicant did refer, inter alia, to Article 6

(art. 6) of the Convention in his constitutional complaint. It might

well also have been the case, as the Delegate assumed, that the

competent authorities would have been prompted to accelerate matters

had the Constitutional Court ordered the applicant's release.

However, it should not be overlooked that the complaint in question

was not aimed at securing a more expeditious conduct of the

proceedings: the complaint was directed against the unreasonable

length of the detention on remand and had as its sole object

Mr. Eckle's release from custody. It could have been of relevance in

relation to Article 5 § 3 (art. 5-3) - if, as the Government rightly

recalled, the Commission had not declared the application inadmissible

on that score - but not in relation to Article 6 § 1 (art. 6-1).

(ii) Lawyer's fees and disbursements for the petition for a review on

points of law (Revision) of the judgment of 17 March 1972 by the Trier

Regional Court

31. Mr. Eckle also claimed DM 10,866.50 for the agreed fees and

disbursements of Mr. von Stackelberg who had represented him in the

review proceedings.

According to the Government, the services of this lawyer were not

necessary as Mr. Becker had been nominated officially appointed

defence lawyer. In addition, Mr. von Stackelberg had pleaded a number

of matters and had, for example, applied on 7 April 1975 for the

prosecutions to be discontinued on the ground of limitation, but had

never objected to the dilatory nature of the proceedings or invoked

Article 6 § 1 (art. 6-1).

32. The evidence does not disclose that Mr. Eckle raised any such

objection before the Federal Court of Justice. Indeed he does not

even claim to have done so. However, whilst he complained essentially

of procedural irregularities, he also alleged contravention of the

substantive law (Sachrügen). Consequently, the Federal Court was

under a duty to review, of its own motion, the conformity with the law

of the judgment challenged, and in particular the sentence imposed.

This is why in its own judgment of 19 February 1976 the Federal Court

examined the reasoning of the Trier Regional Court regarding the level

of the sentence imposed; amongst other things, it re-affirmed the

reliance placed on the case-law holding that excessive length of

criminal proceedings may constitute a special mitigating circumstance

(see the above-mentioned Eckle judgment, p. 17, § 33; see also the

admissibility decision of 10 May 1979, appendix II to the Commission's

report).

In the second place, as the Government conceded, the supporting

written pleadings (Revisionsbegründung) were filed by Mr. von

Stackelberg who alone, according to the Federal Court's judgment,

appeared before it on behalf of Mr. Eckle.

Nevertheless, in view of his not having raised the issue of

"reasonable time" himself the applicant cannot recover in full

Mr. von Stackelberg's fees and disbursements. The Delegate of the

Commission suggested an award of DM 1,000. In the particular

circumstances of the case, the Court judges this amount to be

adequate.

(iii) Lawyer's fees and disbursements for the constitutional

complaint against the judgment of 17 March 1972 by the Trier Regional

Court and the judgment of 19 February 1976 by the Federal Court of

Justice; fees for the legal opinion of Professor Kloepfer

33. Mr. Eckle further claimed DM 10,866.50 in respect of agreed

fees and disbursements of Mr. von Stackelberg who applied on his

behalf to the Federal Constitutional Court on 24 May 1976 and

DM 16,000, together with 12 per cent interest, in respect of fees for

a legal opinion by Professor Kloepfer which was submitted to the

Constitutional Court.

The Government pointed out that only one of the four grounds of the

constitutional complaint related to the unreasonable length of the

proceedings. On the basis of the Federal Scale of Lawyers' Fees

(Bundesgebührenordnung für Rechtsanwälte), they were of the view that

he could claim DM 495.59. As far as the fees for the drafting of the

legal opinion were concerned, these were not necessarily incurred and

there was no causal link between them and the violation found, so the

Government argued, in that Mr. Eckle consulted Professor Kloepfer

simply to establish expiry of the limitation period and hence the

unlawfulness of his conviction.

The Delegate of the Commission thought it reasonable to award the

applicant DM 1,500 in respect of the fees and disbursements connected

with the constitutional complaint. On the other hand, he judged the

expenditure represented by Professor Kloepfer's expert opinion to be

unnecessary.

34. The Court agrees with the Government and the Delegate that

Mr. Eckle can recover only a proportion of the lawyer's fees and

disbursements: the constitutional complaint of 24 May 1976 was not

directed solely against the length of the proceedings but also

against, inter alia, the composition of the Regional Court and the

alleged unconstitutionality of a statutory rule of law applied by the

Federal Court of Justice.

35. The Government further contended that the amount claimed by

way of lawyer's fees and disbursements did not tally with the Federal

Scale.

To begin with, the Court would recall that in this context it is not

bound by domestic scales or standards (see the above-mentioned König

judgment, Series A no. 36, p. 18, § 23; the Sunday Times judgment

of 6 November 1980, Series A no. 38, p. 17, § 41).

Furthermore, German law does not preclude entering into a contract to

charge agreed fees higher than the levels laid down in the Federal

Scale. Although the lawyer admittedly cannot enforce payment of such

agreed fees except by virtue of a written declaration signed by his

client (Article 3 § 1, first sentence, of the Federal Scale), the

Court does not deem it necessary to seek proof of such an undertaking,

as the Government would wish to see it do, since there is no

suggestion in the evidence of any disaccord between

Mr. von Stackelberg and Mr. Eckle as to the latter's liability to pay

the sum indicated.

The Government expressed surprise that Mr. von Stackelberg should have

waited until October 1982, that is more than five years after the

decision of the Federal Constitutional Court (30 June 1977), before

drawing up the particular fee note in question as well as, moreover,

nearly all the other fee notes he has produced to the Court. For its

part, the Court has no cause to believe that it is confronted with a

bogus document drafted solely for the purposes of the proceedings

pending before it since the judgment of 15 July 1982.

In conclusion, the Court judges it appropriate, as was suggested by

the Delegate of the Commission, to award Mr. Eckle DM 1,500 in respect

of the lawyer's fees and disbursements connected with the

constitutional complaint of 24 May 1976.

36. On the other hand, the claim regarding the legal opinion of

Professor Kloepfer, an opinion that dealt with the consequences in law

of the unreasonable length of criminal proceedings, is to be rejected.

The Court, like the Delegate of the Commission, is not satisfied as to

the necessity of the expenditure involved (see, mutatis mutandis, the

above-mentioned Sunday Times judgment, pp. 16-17, § 37).

(iv) Fees of lawyers who represented Mr. Eckle in the proceedings

concerned with determination of a cumulative sentence

37. Finally, Mr. Eckle claimed DM 461.10 and DM 1,025 in respect

of fees for Mr. von Trützschler and Professor Vogler, respectively,

who had represented him in the proceedings concerned with

determination of the cumulative sentence.

The Government's contentions were the following. There exists no

causal link between these costs and the violation found by the Court.

Since a cumulative sentence must be fixed by the courts of their own

motion, the proceedings provided for under law for that purpose do not

figure amongst the remedies to be exhausted in accordance with

Article 26 (art. 26). Furthermore, the services of two lawyers were

not necessary. The applicant had, moreover, neither produced fee

notes nor established actual payment of the sums being claimed.

The Delegate of the Commission suggested retention of a figure of

DM 1,025, corresponding to the amount asked for in relation to

Professor Vogler's fees.

38. The brief of Mr. von Trützschler had been to challenge, on

behalf of Mr. Eckle, before the Koblenz Court of Appeal the decision

of 24 November 1977 whereby the Trier Regional Court determined the

cumulative sentence (see the above-mentioned judgment of 15 July 1982,

p. 18, §§ 35 and 36). Professor Vogler, for his part, acted for

Mr. Eckle before the Federal Constitutional Court to which he had

applied following the Court of Appeal's dismissal on 23 January 1978

of the above appeal (ibid.).

39. The Court, concurring with the Delegate, recognises that it

was in the applicant's interest to have the assistance of a lawyer

during these proceedings. According to the terms of the judgment of

19 February 1976 by the Federal Court of Justice, in determining the

cumulative sentence account had to be taken of the excessive length of

the proceedings, notably as regards "the period which [had] elapsed

between the hearing before the trial court and the moment when the

principle of res judicata took effect in respect of the judgment, and

which [would] elapse until the final decision" (ibid., p. 17,

§ 33). Thus, the determination of the cumulative sentence was a matter

of great importance for Mr. Eckle, especially since it could lead to

the violation of Article 6 § 1 (art. 6-1) being redressed (ibid.,

pp. 30-32, 38 and 39-40, §§ 66-70, 87, 88, 94 and 95).

40. The specific figures put forward appear plausible and

reasonable. In these circumstances, the Court does not deem it

necessary to call for the vouchers requested by the Government.

(b) Mrs. Eckle

41. For costs and expenses, Mrs. Eckle sought in total

DM 89,036.45 and release from joint and several liability to pay the

sum of DM 17,193.57, together with interest at 12 per cent on

DM 26,O07.60. Her lawyer gave notice of certain other outstanding

bills that had not yet been rendered.

The Government could agree to DM 600 and 4 per cent interest, the

outside limit being DM 800. According to the Delegate of the

Commission, Mrs. Eckle could claim recovery of DM 3,525.

42. The Court rejects the following items as unconnected with the

violation found or even with the relevant facts of the case :

- prosecution costs (DM 47,495.40) and release from joint and several

liability (DM 17,193.57) in the Trier proceedings;

- agreed fees and disbursements of Mr. Bungartz (representation of the

applicant in the Trier proceedings): DM 13,188.45;

- agreed fees and disbursements of Mr. Bungartz (representation of the

applicant in the Cologne proceedings): DM 7,000.

(i) Lawyers' fees and disbursements for the petition for a review on

points of law of the judgment of 17 March 1972 by the Trier Regional

Court

43. Mrs. Eckle claimed DM 10,866.50 and DM 6,000, together with

12 per cent interest, for the agreed fees and disbursements of

Mr. von Stackelberg and Professor Habscheid, respectively, who had

acted for her during the proceedings for a review on points of law.

The Government's arguments regarding this item were as follows.

Mrs. Eckle did not need the services of Mr. von Stackelberg since

Mr. Teuber had represented her as officially appointed defence lawyer

until 16 November 1974. Moreover, Mr. von Stackelberg ceased acting

for her at the beginning of 1975. On the other hand,

Professor Habscheid, who had been instructed by her on

26 January 1975, did refer to Article 6 § 1 (art. 6-1) in his written

pleadings of 26 January 1976. Consequently, she could recover, at the

outside limit, one-thirtieth of his fees.

According to the undisputed evidence supplied by the Government,

supporting written pleadings on behalf of the applicant were filed

with the Federal Court of Justice firstly by Mr. Teuber and

subsequently in March 1973 and April 1974 by Mr. von Stackelberg, but

neither lawyer formulated any complaint as to the unreasonable length

of the proceedings. Professor Habscheid, for his part, did place

reliance on Article 6 § 1 (art. 6-1) when submitting that the proceedings

should be discontinued on the ground of limitation.

This being so, and having regard to what has been said in relation to

Mr. Eckle's case (see paragraph 32 above), the Court agrees with the

Delegate of the Commission that Mrs. Eckle should be awarded the sum

of DM 1,000 under this head.

(ii) Lawyer's fees and disbursements for the constitutional complaint

against the judgment of 17 March 1972 by the Trier Regional Court and

the judgment of 19 February 1976 by the Federal Court of Justice

45. Mrs. Eckle further claimed DM 3,000 plus 12 per cent interest

for the fees of Professor Habscheid who, on her behalf, had brought

before the Federal Constitutional Court a complaint challenging both

the judgment of 17 March 1972 by the Trier Regional Court and the

judgment of 19 February 1976 by the Federal Court of Justice.

The Government drew attention to the fact that only one of the five

grounds of this complaint was concerned with the excessive length of

the proceedings. In their view, the applicant could therefore recover

no more than DM 600.

The Delegate of the Commission regarded a figure of DM 1,500 as

reasonable.

46. The Court likewise considers that Mrs. Eckle cannot be granted

reimbursement of the full amount paid out: in addition to the dilatory

nature of the proceedings, the matters raised in the constitutional

complaint of 18 May 1976 included the allocation of the various groups

of cases, violation of the principle of equality before the law and

disregard of the rights of the defence.

In the particular circumstances of the case, and in the light of what

has been stated in respect of Mr. Eckle with regard to the application

of the Federal Scale (see paragraph 35 above), the Court deems it

appropriate to award to Mrs. Eckle DM 1,500 under this head.

(iii) Fees of lawyers who represented Mrs. Eckle in the proceedings

concerned with determination of a cumulative sentence

47. Finally, Mrs. Eckle claimed DM 461.10 and DM 1,025, together

with interest at 12 per cent, for the fees of Mr. Schabio and

Professor Vogler, respectively, who had represented her in the

proceedings concerned with the determination of the cumulative

sentence.

For the reasons given at paragraph 37 above, the Government argued for

the outright rejection of this claim; the Delegate of the Commission

suggested an award of DM 1,025.

48. It would appear that on 24 October 1977 Mr. Schabio requested

the Trier Regional Court to fix a cumulative sentence, taking proper

account of the unreasonable length of the proceedings; on

2 December 1977, he appealed to the Koblenz Court of Appeal against

the decision that the Regional Court had delivered on 24 November 1977

(see the above-mentioned Eckle judgment, p. 18, §§ 35-36).

Professor Vogler, for his part, acted for Mrs. Eckle before the

Federal Constitutional Court to which he had applied following the

dismissal on 23 January 1978 of the above appeal (ibid.)

49. In these circumstances, the Court judges it equitable to award

Mrs. Eckle the amounts claimed; in this connection, the Court refers

back to what it has stated with regard to Mr. Eckle (see paragraphs 39

and 40 above).

3. Costs incurred in Strasbourg

50. The applicants, neither of whom received the benefit of free

legal aid before the Strasbourg institutions, each sought recovery of

DM 4,655 to cover the disbursements and fees of Professor Vogler who

had represented them before the Commission (DM 2,525) and then before

the Court (DM 2,130). Mrs. Eckle further claimed 12 per cent

interest, and Mr. Eckle DM 10,000 in respect of advances paid on

Mr. von Stackelberg's fees in the Article 50 (art. 50) proceedings.

The Government's replies may be summarised as follows. Without

disputing the applicants' entitlement to reimbursement of their costs

incurred in Strasbourg, the Government considered that a deduction

should be made in view of their applications having been unsuccessful

in relation to three complaints declared inadmissible by the

Commission. Also, the difference in the size of the claims made by

Mr. and Mrs. Eckle dictated a different apportionment of the fees,

namely one-third for Mrs. Eckle and two-thirds for her husband.

Furthermore, the applicants had produced no detailed vouchers or

evidence of any payment whatsoever. As far as Mr. von Stackelberg's

fees were concerned, these should be calculated in accordance with the

Federal Scale and on a pro rata basis, that is in proportion to the

degree of success of the claims made (amounting to more than seven

million marks). Finally, the sums sought for Professor Vogler

bordered on the upper limit of what could be regarded as reasonable in

comparison with the Federal Scale and Mr. von Stackelberg's services

had essentially consisted offorwarding written statements and files

prepared by the applicants. Subject to the foregoing, the Government

left it to the discretion of the Court to settle the rates recoverable

for the costs and expenses.

The Delegate of the Commission submitted that the claims be acceded

to, subject to reducing to DM 1,000 the sum to be awarded to each

applicant in relation to the Article 50 (art. 50) stage of the

proceedings.

51. The Court is unable to agree with the Government in its

proposal to make a deduction from the costs connected with the

proceedings before the Commission. The applicants did, it is true,

unsuccessfully plead complaints regarding the Saarbrücken proceedings,

Article 6 § 2 and Article 5 § 3 (art. 6-2, art. 5-3) (see the

above-mentioned Eckle judgment, pp. 28-29, § 61). Nevertheless,

and in contrast to what occurred in the case of Le Compte, Van Leuven

and De Meyere to which the Government referred (see the judgment of

18 October 1982, Series A no. 54, p.10, § 21), the complaints in

question failed at the admissibility stage. Furthermore, the

Commission did not reject them as being manifestly ill-founded, and

hence after a preliminary inquiry into the merits, but for being out

of time (Saarbrücken proceedings and Article 5 § 3) (art. 5-3)

and for non-exhaustion of domestic remedies (Article 6 § 2)

(art. 6-2). As is apparent from the decision on admissibility

(appendix II to the Commission's report), the examination of these two

questions of admissibility (in the strict sense of the term) was not

of such complexity that its outcome could warrant the deduction called

for by the Government.

Nor does the Court deem it necessary, in the particular circumstances

of the case, to apportion the costs and expenses in a different manner

from that suggested by the applicants themselves.

With regard to the DM 10,000 claimed by way of advance payment on

Mr. von Stackelberg's fees, the Court concurs with the Government and

the Commission in finding this item to be out of proportion with the

actual work performed by this lawyer during the Article 50 (art. 50)

stage of the proceedings, especially when compared with the services

rendered earlier by Professor Vogler before the Commission and the

Court. As was rightly pointed out by the Government, the contribution

of Mr. von Stackelberg was in essence limited to forwarding, together

with a covering letter, the claims and documents of his clients. His

memorandum of 13 January 1983 constitutes an exception, in that he

furnished replies to the Government's observations. Consequently, the

Court concurs with the Delegate's proposal on this item and awards

DM 1,000 to each applicant.

As far as the amounts asked for in respect of Professor Vogler are

concerned, the Court regards these as plausible and reasonable;

accordingly, it does not deem it necessary to call for the vouchers

requested by the Government.

4. Interest

52. In all the circumstances of this case, the Court does not

consider it appropriate to allow interest on the sums awarded in

respect of costs and expenses.

5. Recapitulation

53. The items accepted by the Court in paragraphs 32, 35, 40, 44,

46, 49 and 51 amount to a total of DM 9,641.10 for each applicant.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that the respondent State is to pay to each of the applicants

nine thousand six hundred and forty-one marks and ten pfennigs

(DM 9,641.10) in respect of costs and expenses and rejects the

remainder of the claims for just satisfaction.

Done in English and in French, the French text being authentic, at the

Human Rights Building, Strasbourg, this twenty-first day of June, one

thousand nine hundred and eighty-three.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar