BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF LAUDON v. GERMANY
(Application
no. 14635/03)
JUDGMENT
STRASBOURG
26 April
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Laudon v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste, judges,
Mrs B.
Mayen, ad hoc judge,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 27 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14635/03) 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, Ms Barbara
Laudon (“the applicant”), on 4 May 2003.
- The
German Government (“the Government”) were represented by
their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin,
of the Federal Ministry of Justice.
- On
6 June 2006 the Court
decided to give notice of the application to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Frankenthal. She was
represented by counsel throughout the proceedings before the national
authorities and courts.
1. Background to the case
- On
9 December 1987 the applicant was operated at the lymphatic
gland by doctor M. In the course of that operation, her cranial
nerve was damaged. As a consequence, she could no longer properly
move her head and shoulders and suffered from considerable pain and a
loss of sensibility of her neck and her right arm and hand. Because
of this, the applicant became partially unfit for work in her former
job as a cleaning lady. She has not been working since her operation
and has been living on social security benefits.
- On
30 March 1989 the applicant, following a suggestion of the
defendant's medical malpractice insurance company, had recourse to
the arbitration board of the Rhineland-Palatinate Medical Council
(Landesärztekammer). On 12 June 1990 expert B.,
who had been called to give an opinion, found that doctor M. had
caused an avoidable paralysis of the applicant's cranial nerve by
improper medical treatment. On 1 February 1991 the commission of
experts of the arbitration board expressed the opinion that the
applicant could not be expected to subject herself to another
operation aimed at reconstructing the cranial nerve due to the risk
that her state of health might deteriorate following such surgery.
- The
medical malpractice insurance company of doctor M. subsequently
refused to pay the compensation for non-pecuniary damage and the
occupational disability pension claimed by the applicant.
2. Court proceedings
a. Proceedings in the Frankenthal Regional
Court
- On
12 March 1991 the applicant brought an action for damages
against doctor M. in the Frankenthal Regional Court. She claimed
to be paid 12,000 Deutschmarks (DEM) in compensation for the
non-pecuniary damage suffered by medical malpractice and a monthly
occupational disability pension of DEM 1,800. She further
requested the court to establish by declaratory judgment that the
defendant was obliged to compensate her for any pecuniary or
non-pecuniary damage she suffered or would suffer in the future from
the incorrect medical treatment.
- On
23 April 1991 the Frankenthal Regional Court decided to grant
the applicant legal aid.
- On
17 September 1991 the Frankenthal Regional Court held an oral
hearing in which it made a friendly settlement proposal.
- In
a further hearing held on 19 November 1991 the applicant
rejected the court's friendly settlement proposal which had
previously been accepted by the defendant. The Regional Court
requested the applicant further to reason her damages claim by
submitting documents.
- On
14 January 1992 the Regional Court appointed an expert for
neurology, H., to give an opinion about the consequences of the
paralysis of the applicant's cranial nerve on her capacity to perform
manual work, in particular in her former job as a cleaning lady and
in her own household.
- On
25 February 1992 the applicant was medically examined by the
expert for neurology, who rendered his report on 26 March 1992.
- On
30 April 1992 the expert for neurology gave another report.
- On
22 September 1992 the Regional Court appointed a further
orthopaedic expert to give an opinion on the question of whether the
applicant would have been healed if she had subjected herself to
another operation aimed at reconstructing the cranial nerve.
- On
25 February 1993 the orthopaedic expert, He., rendered his
report.
- On
6 July 1993 the Regional Court held a hearing in which the
parties concluded a revocable friendly settlement. The applicant
validly revoked the agreement on 20 July 1993.
- On
1 November 1993 the expert for neurology supplemented his report
on the court's request by giving an opinion on questions concerning
the degree of the applicant's incapacity to work.
- On
8 March 1994 the Regional Court held another hearing.
- On
26 April 1994 the Regional Court requested the transmittal of
the case-file concerning the applicant from the Landau Pension Office
(Versorgungsamt). The applicant failed to give her necessary
consent until 5 January 1995. The files reached the Regional
Court on 2 February 1995.
- On
8 February 1995 the Regional Court, in view of the contents of
the case-file transmitted by the Pension Office, requested the expert
for neurology to give another supplementary medical advice notably on
the applicant's objection that the degree of her disability was
higher than the 40 per cent diagnosed by the expert.
- On
18 March 1995 the expert for neurology gave the supplementary
report to his medical opinion requested.
- On
2 April and 6 May 1995 the applicant complained to the
Regional Court about the length of the proceedings.
- On
4 July 1995 the Regional Court held another oral hearing.
It proposed the parties to reach a friendly settlement of their
case, with the defendant paying a lump sum of DEM 100,000 to the
applicant. The applicant subsequently failed to accept the terms
of the settlement.
- On
19 September 1995 the Frankenthal Regional Court delivered its
judgment (running to ten pages). It ordered the defendant to pay to
the applicant DEM 12,000 in non-pecuniary damages and a monthly
pension of DEM 720 compensating her loss of earnings as of
12 June 1991. It further declared that the defendant had to
indemnify the applicant for all pecuniary and non-pecuniary damage
incurred by the incorrect medical treatment.
- On
4 October 1995 the judgment was served on the applicant.
b. Proceedings in the Zweibrücken
Court of Appeal
- On
6 November 1995 both the applicant and doctor M. lodged an
appeal against the Regional Court's judgment, which they reasoned on
3 January and 9 January 1996 respectively.
- On
26 March 1996 the Zweibrücken Court of Appeal granted the
applicant legal aid.
- In
a letter dated 11 October 1996 the applicant urged the Court of
Appeal to further the proceedings in view of the fact that they had
lasted already for many years. On 19 October 1996 the Court of
Appeal informed the applicant that despite the court's workload the
case would be heard in due course.
- On
10 December 1996 the Court of Appeal heard the parties'
representatives and ordered the applicant to submit further
information and documents concerning her claim until 30 January
1997.
- On
19 June 1997 the Court of Appeal discontinued the proceedings
pending the outcome of the applicant's request lodged with the
Rhineland Palatinate Insurance Institution to be granted an
occupational disability pension. Both parties had agreed to the
court's proposal to proceed in this manner. The Court of Appeal made
a friendly settlement proposal to the parties, which, after further
correspondence between the parties and the court, was subsequently
rejected by the defendant.
- By
letters dated 20 October and 1 December 1998 the applicant
complained to the Court of Appeal that there has not been a hearing
since December 1996 and about the protracted length of the
proceedings.
- On
28 September 1999 the Court of Appeal, having heard the parties
in court, decided that the proceedings should remain suspended until
the termination of the applicant's proceedings in the social courts
concerning her motion to be granted an occupational disability
pension. It agreed with the parties that the amount of the
applicant's pension claim against doctor M. depended on the
outcome of these proceedings.
- On
7 March 2001 the Court of Appeal, having obtained the
applicant's consent requested on 10 January 2001, consulted the
files of the applicant's proceedings in the social courts in which,
in particular, further expert reports had been rendered as to the
applicant's incapacity for work.
- On
6 February 2001, following the termination of the proceedings in
the social courts, the Speyer Insurance Institution issued a new
notice of pension to the applicant, granting her a monthly
occupational disability pension of some DEM 1,024 as of March
2001. A copy of the decision reached the Court of Appeal on 23 April
2001.
- On
22 May 2001 the Court of Appeal resumed the proceedings and held
a hearing. It set the parties a deadline until 12 June 2001 to
declare whether they agreed to the terms of a friendly settlement of
the case proposed by the court.
- On
6 June 2001 the applicant lodged a motion to resume the hearing
in order to examine her capability of being a party to an action
(Prozessfähigkeit) and to allow her the extension of her
claim.
- On
3 July 2001 the Zweibrücken Court of Appeal delivered its
judgment (running to 16 pages). Modifying the Regional Court's
judgment in this respect, it ruled that doctor M. had to pay the
applicant a monthly pension of some DEM 775 compensating her
loss of earnings, but only as of 1 June 2001. It observed that
the applicant could not claim a higher amount of pension, as,
pursuant to the notice of pension dated 6 February 2001, she
also received a monthly occupational disability pension of DEM 1,024
by the Insurance Institution after 1 June 2001. She could not,
therefore, claim that additional amount from the defendant herself in
the future as her claim had passed to the Insurance Institution in
this respect. Moreover, having regard to the fact that the applicant
had already in the past received social security benefits, the court
found that the applicant had failed to provide sufficient evidence
that she still had a claim herself for the period of time preceding
1 June 2001, despite the court's repeated invitations to do so.
Apart from that, the Court of Appeal upheld the remainder of the
Regional Court's judgment.
c. Proceedings in the Federal Court of
Justice
- On
5 March 2002 the Federal Court of Justice granted the applicant
legal aid for the proceedings concerning the appeal on points of law
lodged by doctor M. while refusing to grant her legal aid for
lodging an appeal on points of law herself.
- On
18 June 2002 the Federal Court of Justice refused to admit the
applicant's appeal on points of law as it had no prospects of
success. It decided to admit doctor M.'s appeal on points
of law in so far as he complained against the order to pay pension to
the applicant after 30 June 2026.
- In
its judgment delivered on 5 November 2002 (running to five
pages), the Federal Court of Justice, after having held a hearing,
partly modified the judgment of the Court of Appeal. It held that
doctor M. was obliged to pay the applicant a monthly pension
compensating her loss of earnings of some DEM 775 as of 1 June
2001, but only until 30 June 2026. In that month the applicant
would attain the age of 65 and would have retired if she had worked.
- The
judgment was served on the applicant on 9 December 2002.
d. Proceedings in the Federal
Constitutional Court
- On
8 January 2003 the applicant lodged a complaint with the Federal
Constitutional Court. She argued, in particular, that her right to a
fair trial, as guaranteed by Article 2 § 1 read in
conjunction with Article 20 § 3 of the Basic Law, had
been breached, as the length of her proceedings in the civil courts
had been excessive. She further argued that her right to general
freedom of action (allgemeine Handlungsfreiheit) as protected
by Article 2 § 1 of the Basic Law had been violated
because the civil courts had dismissed her claim to be paid a pension
also after she had attained the age of 65.
- On
17 January 2003 the Registry of the Federal Constitutional Court
informed the applicant that it was doubtful whether she had
sufficiently substantiated her constitutional complaint within the
one-month time-limit. It argued that the copy of the judgment of the
Federal Court of Justice had reached the Constitutional Court only
one day after the expiry of that time limit.
- On
29 January 2003 the applicant requested to be restored to her
original legal position, adding a copy of the judgment of the Federal
Court of Justice of 5 November 2002. The Government claimed that
page 4 of that judgment, containing the reasoning of the court,
was missing in that request. This was contested by the applicant.
- On
19 February 2003 the Federal Constitutional Court refused to
admit the applicant's constitutional complaint. It found that it was
not necessary to decide on the applicant's motion to be restored to
her original legal position as, in any event, the applicant's
complaint did not concern matters of fundamental significance from a
constitutional law perspective. Adjudicating on the applicant's
complaint was also not necessary in order to enforce the fundamental
rights invoked by her. Even assuming that she had submitted a copy of
the judgment of the Federal Court of Justice within the prescribed
time-limit for filing the fully documented constitutional complaint,
her complaint had no prospects of success. The applicant's
submissions did not warrant the conclusion that this judgment
violated the rights invoked by the applicant.
- The
decision was served on the applicant's representative on 27 February
2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION – FAIRNESS OF THE PROCEEDINGS
- The
applicant claimed that some of the findings of fact and law by the
civil courts in her damages proceedings had not been correct.
This complaint falls to be examined under Article 6 § 1
of the Convention which, in so far as relevant, provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Government contested that argument.
A. Exhaustion of domestic remedies
- The
Government submitted that the applicant did not exhaust domestic
remedies in respect of her complaint about the fairness of the
proceedings. As the applicant had failed to submit a complete copy of
the judgment taken by the Federal Court of Justice in the proceedings
before the Federal Constitutional Court, the latter court had not
been in a position to examine her complaint about the amount of
pension awarded.
- The
applicant contested this view. She claimed that she had sent a
complete copy of the Federal Court of Justice's judgment to the
Federal Constitutional Court.
- The
Court reiterates that, whereas Article 35 § 1 of the Convention
must be applied with some degree of flexibility and without excessive
formalism, it does not require merely that applications should be
made to the appropriate domestic courts and that use should be made
of remedies designed to challenge decisions already given. It
normally requires also that the complaints intended to be brought
subsequently before the Court should have been made to those same
courts, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law (see, inter
alia, Cardot v. France, judgment of 19 March 1991,
Series A no. 200, p. 18, § 34; Elçi and others v.
Turkey, nos. 23145/93 and 25091/94, § 604, 13 November
2003). Non-exhaustion of domestic remedies cannot, however, be held
against the applicant if, in spite of the latter's failure to observe
the forms prescribed by law, the competent authority has nevertheless
examined the substance of the appeal (see, among other authorities,
Skalka v. Poland (dec.), no. 43425/98, 3 October 2002;
Uhl v. Germany (dec.), no. 64387/01, 6 May 2004).
- The
Court observes that in the present case, the Federal Constitutional
Court proceeded on the assumption that the applicant had submitted a
(complete) copy of the judgment delivered by the Federal Court of
Justice within the prescribed time-limit. The Federal Constitutional
Court therefore expressly chose not to dismiss the applicant's
constitutional complaint for failure to comply with a formal
requirement, namely to sufficiently substantiate her complaint by
submitting copies of the relevant decisions within the one-month
time-limit. Instead, it refused to admit the applicant's
constitutional complaint as it had no prospects of success on the
merits, there being no appearance of a violation of the applicant's
Basic Law rights by the impugned judgment.
- The
Court concludes that in these circumstances, the applicant must be
found to have exhausted domestic remedies in compliance with the
prescribed formal requirements and time-limits as required by
Article 35 § 1 of the Convention.
B. Fairness of the proceedings
- In
the applicant's submission, the findings of fact and the application
of the law by the civil courts had partly been incorrect. In
particular, the courts had not awarded her a sufficient amount of
pension, as they had failed to acknowledge that the degree of her
occupational disability amounted to 50 per cent and had decided that
her pension was only payable until the age of 65. Moreover, the
courts had failed to recognize that as a consequence of the paralysis
of her right arm following the erroneous medical treatment, her left
arm had also been injured. She claimed that she was entitled to
further compensation in order to be able to pay the contributions for
a health insurance, the costs of further medicaments, medical devices
and domestic help.
- The
Court reiterates that it is not its function to deal with errors of
fact or law allegedly committed by a national court unless and in so
far as they may have infringed rights and freedoms protected by the
Convention. In particular, the assessment of facts or evidence is
primarily a matter for regulation by national law and the national
courts; the Court's task is to ascertain whether the proceedings in
their entirety, including the way in which the evidence was assessed,
were “fair” (see, inter alia,
Schenk v. Switzerland, judgment of 12 July
1988, Series A no. 140, p. 29, §§ 45-46;
Dombo Beheer BV v. the Netherlands, judgment of 27 October
1993, Series A no. 274, pp. 18-19, § 31, and
García Ruiz v. Spain [GC], no. 30544/96,
ECHR 1999-I, § 28). Moreover, the Court will not
question the national courts' interpretation of domestic law unless
there has been a flagrant non-observance or arbitrariness in the
application of the said provisions (see, inter alia, Société
Colas Est and Others v. France, no. 37971/97, § 43,
ECHR 2002-III and, mutatis mutandis, Lavents v. Latvia,
no. 58442/00, § 114, 28 November 2002).
- The
Court finds that the applicant in substance complained about the
findings of facts, the assessment of evidence and the application of
national law by the domestic courts. As regards the civil courts'
findings of fact and the assessment of evidence, the Court observes
that the domestic courts reached their findings on the consequences
of the applicant's injuries caused by medical malpractice on the
basis of and agreeing with a total of five reports and supplementary
reports by two experts. It cannot discern any element of unfairness
in this respect. Likewise, the application of the national law, which
has duly been reasoned by the civil courts in three levels of
jurisdiction, does not disclose any appearance of arbitrariness in
dealing with the applicant's case.
- It
follows that this part of the application must be dismissed as
manifestly ill-founded pursuant to Article 35 §§ 3
and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION – LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings she had
instituted for compensation in the civil courts was 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.
- With
the proceedings before the arbitration board not being a necessary
precondition for bringing civil proceedings, the period to be taken
into consideration began on 12 March 1991, when the applicant
brought her action in the Frankenthal Regional Court.
- As
to the date on which the applicant's proceedings ended, the Court
observes that, in her complaint to the Federal Constitutional Court,
the applicant complained not only about the length of the
proceedings, but also about the extent of her pension entitlements.
The Federal Constitutional Court proceedings were therefore directly
decisive for a dispute over the applicant's civil rights. It further
notes that prior to the delivery of its judgment in the case of
Sürmeli v. Germany ([GC], no. 75529/01,
ECHR 2006-...) on 8 June 2006, the Convention institutions
have taken the view that a constitutional complaint to the Federal
Constitutional Court was an effective remedy in respect of complaints
concerning the length of civil proceedings (see Sürmeli,
cited above, § 103). At
the relevant time when the application was lodged with the Court
(compare Charzynski v. Poland
(dec.), no. 15212/03, § 35, ECHR 2005-V) on
4 May 2003, a complaint to the
Federal Constitutional Court about the proceedings' length was
therefore a domestic remedy which had to be exhausted prior to
bringing the same complaint before the Court. As a
consequence, the duration of the
proceedings before the Federal Constitutional Court have to be taken
into consideration when calculating the total length of the
applicant's proceedings. These proceedings thus ended
on 27 February 2003, when the decision of the Federal
Constitutional Court was served on her representative (compare Gast
and Popp v. Germany, no. 29357/95, § 69,
ECHR 2000-II). They lasted almost twelve years for four levels
of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
observes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant argued that the duration of the proceedings was clearly
excessive. She submitted in particular that the courts had not held
hearings in due course despite her repeated requests to further the
proceedings. Moreover, she contested having requested the
discontinuance of the proceedings by the Court of Appeal awaiting the
outcome of the proceedings before the Rhineland-Palatinate Insurance
Institution, which had considerably delayed the proceedings. She
further claimed that her civil proceedings had been independent of
the outcome of her proceedings in the social courts. As a consequence
of the proceedings' length, she had not yet received any payment by
doctor M.'s medical malpractice insurance company.
- According
to the Government, the length of the proceedings in the civil courts
had not been excessive in the particular circumstances of the case.
They argued that the proceedings had been complex, as the
consequences of the injuries caused to the applicant had to be
examined in a total of five reports and supplementary reports by both
a neurological and an orthopaedic expert. The applicant had caused
delays in the proceedings before the Regional Court by rejecting
friendly settlement proposals, requesting expert opinions and failing
to give her consent to the transmittal of the files of other
authorities and courts in due course. Moreover, she had agreed to the
Court of Appeal's proposal to discontinue the proceedings without
subsequently requesting the proceedings to be resumed and had failed
speedily to submit documents requested by that court.
- In
the Government's submission, it could not be imputed to the domestic
courts that the proceedings had been lengthy. It had been necessary
to consult different experts and the case-files of the Pension Office
and the social courts. It had been also on the applicant's demand
that the courts had made several friendly settlement proposals. The
Court of Appeal had properly handled the case when it discontinued
the proceedings with the consent of both parties for some four years.
Even during this period, it attempted to arrive at a friendly
settlement between the parties.
- 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 accepts that the compensation proceedings brought by the
applicant were not simple. In particular, the calculation of the
amount of damages payable to the applicant necessitated the
consultation of two medical experts. However, the Court also notes
that certain facts which were decisive for the applicant's
compensation claim had already been verified by independent experts
prior to the impugned proceedings in the civil courts, namely in the
(independent) proceedings before the arbitration board of the
Rhineland-Palatinate Medical Council. In particular, the fact that
there had been an improper medical treatment by the defendant which
had caused the paralysis of the applicant's cranial nerve had already
been confirmed by an expert in these proceedings. Likewise, the
commission of experts of that board had found that the applicant
could not be expected to subject herself to another operation aimed
at reconstructing the cranial nerve. The Court accepts that these
findings, which were available when the applicant instituted the
proceedings at issue in the Frankenthal Regional Court, did not
substitute taking evidence by the Regional Court. Nevertheless they
must be considered to have simplified these proceedings.
- The
Court observes that the applicant's conduct appears to have
contributed to a certain extent to the delays caused in the
proceedings. In particular, she failed speedily to give her
consent to the transmittal of her case-file from the Landau Pension
Office (or to otherwise express her view on this issue) in the
proceedings before Regional Court. Moreover, she had not submitted
all relevant documents to reason her damages claim already at the
outset of the proceedings.
- As
to the conduct of the competent authorities, the Court notes, in
particular, that the case has been pending for more than four and a
half years in the Regional Court. There were repeatedly periods of
inactivity in the proceedings before that court, notably between the
rendering of the expert report on 30 April 1992 and the
appointment of a further expert on 22 September 1992 and between
the submission of the report of the orthopaedic expert on 25 February
1993 and the hearing on 6 July 1993. The proceedings were
further delayed between the submission of the supplementary report of
the expert for neurology on 1 November 1993 and the court's
hearing on 8 March 1994 and between the submission of the
further supplementary report of the expert for neurology on 18 March
1995 and the court's hearing on 4 July 1995. Having regard to
the successive and repeated consultation of the two experts heard, it
further appears that the medical expert advice necessary to
adjudicate the case could have been obtained in a more expeditious
and efficient manner.
- As
to the conduct of the proceedings in the Court of Appeal, the Court
notes that this court only held one hearing between 9 January
1996 and 19 June 1997. Having obtained the parties' consent, it
then suspended the proceedings between 19 June 1997 and 22 May
2001 – that is, for almost four years – pending the
outcome of the proceedings brought by the applicant in the social
courts. The Court accepts that the outcome of the applicant's
proceedings in the social courts were of some relevance for the
proceedings at issue. Following the notice of pension dated
6 February 2001 granting her a monthly occupational disability
pension of some DEM 1,024, the applicant could no longer claim
this amount from the defendant herself in the future. However, the
Court reiterates in this respect that even in civil proceedings,
where it is for the parties to take the initiative with regard to the
progress of the proceedings, the national courts are not dispensed
from ensuring compliance with the requirements of Article 6 of the
Convention as regards the reasonable time requirement (compare, for
example, Duclos v. France, judgment of 17 December
1996, Reports of Judgments and Decisions 1996 VI,
p. 2180, § 55; H.T. v. Germany, no. 38073/97,
§§ 35-37, 11 October 2001). Having regard to the
fact that at the time of their suspension, the proceedings had
already been pending in the civil courts for more than six years, the
Court finds that the Court of Appeal did not duly further the
proceedings by keeping them suspended for another four years in order
to determine the scope of the applicant's future claims after the new
notice of pension dated 6 February 2001.
- Furthermore,
the Court cannot but conclude that the proceedings at issue were of
vital importance to the applicant. She has been unable to work in her
previous job since the improper medical treatment she had received
when she was only 26 years old. The proceedings, which were
notably aimed at securing her a monthly pension for loss of earnings
since the operation, were therefore decisive for the way in which she
would make her living for possibly the rest of her working lifetime.
- Having
regard to all the circumstances of the present case, 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.
III. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Decided to make no award under Article 41 of the
Convention.
Done in English, and notified in writing on 26 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
