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FIFTH
SECTION
CASE OF BÄHNK v. GERMANY
(Application
no. 10732/05)
JUDGMENT
STRASBOURG
9
October 2008
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 Bähnk v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Volodymyr Butkevych,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 16 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 10732/05) 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 Petra Bähnk
(“the applicant”), on 17 March 2005.
2. The
applicant was represented by Mr G. Wilmans, a lawyer practising in
Hamburg. The German Government (“the Government”)
were represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the German Ministry of Justice.
- On
22 January 2008
the Fifth Section of the Court declared the application partly
inadmissible and decided to communicate the complaints concerning the
length of the proceedings and the lack of remedies in that respect to
the Government. It also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant is a German national and lives in Buchholz.
- On
21 September 1995 the applicant was granted divorce and
concluded an interim settlement (Zwischenvergleich) with her
former husband regarding her maintenance claims in the amount of
1.600 German marks (approximately 818 Euros (EUR)) subject to
future variations from the date of the divorce.
- On 10 August 2001 the applicant instituted
claims in sequence before the Hamburg-Wandsbek District Court in
order to first obtain information on her former husband's income and
assets, and subsequently request the variation of her maintenance
claims in accordance with the provided information. The claim was
received by the court on 21 August 2001 and registered
under file number “732 F 8/01”.
- The
scheduled hearings of 11 and 18 December 2001 were postponed at the
request of the applicant's former husband (the defendant).
- On
5 February 2002 an oral hearing was set for 27 March 2002.
At the hearing the Hamburg-Wandsbek District Court ordered an expert
opinion regarding the applicant's invalidity.
- From
8 May to 24 June 2002 the applicant was hospitalised due to her
depressive disorder and the fact that she had suicidal tendencies at
that time. On 4 June 2002 the clinic certified that the applicant
should not take any active part in the court proceedings during her
clinical treatment because it would put such a strain on her that her
treatment would be jeopardised.
- On
8 July 2002 the court rejected the applicant's allegation
of bias of 17 April 2002.
- On
2 September 2002 the applicant's counsel withdrew from
representing her. On 25 September 2002 she applied for
legal aid.
- On
12 September 2002 the first expert, who was appointed by
the court on 3 September 2002, declined the request due to
other commitments. The subsequently appointed expert was rejected by
the defendant on 10 October 2002 as he had treated the
applicant previously.
- On
17 October 2002 the applicant was granted legal aid for the
pending proceedings on condition that she made payments by
instalments. The court did not assign an attorney to the applicant.
- On
21 November 2002 the power of attorney of the applicant's
new counsel was submitted to the court. Subsequently, he was granted
access to the files.
- On
16 January 2003 the Hamburg-Wandsbek District Court revoked
the legal-aid order as a result of the applicant's bank balance of
EUR 57.706,55. On 28 February 2003 the Hanseatic Court
of Appeal quashed the revocation of the legal-aid order as it found
that the applicant had revealed her bank balance in her initial
motion and that with regard to the applicant's justified trust in the
order its revocation was disproportionate.
- On
2 May 2003 the Hamburg-Wandsbek District Court rejected the
applicant's new allegation of bias of 7 April 2003. Her
appeal was dismissed by the Hanseatic Court of Appeal on 26 May 2003.
- On
3 June 2003 the Hamburg-Wandsbek District Court appointed a
new expert to determine the applicant's invalidity. The applicant
requested the extension of the evidence order to include information
in the report as to her invalidity at the time of the divorce. On
27 August 2003 the evidence order was extended accordingly.
The expert opinion was delivered on 19 December 2003, which
established that the applicant had been continuously unfit to work
since the divorce due to her mental illness.
- On
28 December 2003 the applicant lodged an appeal against the
modalities of the legal-aid order. In particular, she contested that
the Hamburg-Wandsbek District Court failed to appoint an attorney for
her and that she was unable to pay instalments.
- On
19 January 2004 the Hamburg-Wandsbek District Court
assigned the applicant an attorney, the counsel who was representing
her at the time.
- On
1 April 2004 the defendant suggested that the applicant's
capacity to litigate be examined. On 25 May 2004 the expert
answered the court's corresponding question to the effect that there
was no doubt about her capacity to litigate throughout the
proceedings.
- On
15 August 2004 the applicant lodged a constitutional
complaint with the Federal Constitutional Court about the length of
proceedings before the Hamburg-Wandsbek District Court.
- The
Government submitted that on 18 August 2004 a hearing took
place before the Hamburg-Wandsbek District Court which was postponed
until 20 October 2004 due to the court's omission to summon
the applicant's counsel. It appears from the files that the
Hamburg-Wandsbek District Court set a joint hearing for two sets of
proceedings which were pending before it between the applicant and
her former husband. The second set of proceedings was initiated by
the applicant's former husband.
- On 24 August 2004 the Registry of the
Federal Constitutional Court asked the Hamburg-Wandsbek District
Court for information on the proceedings. The Hamburg-Wandsbek
District Court subsequently replied that the date for a further oral
hearing was set for 20 October 2004. The Registry of the
Federal Constitutional Court informed the applicant on
13 September 2004 about the reply by the Hamburg-Wandsbek
District Court and suggested that the examination of her
constitutional complaint about the length of proceedings would not be
pursued.
- On
23 November 2004 the Hamburg-Wandsbek District Court
dismissed the applicant's claim to obtain information as to her
former husband's income and assets in a partial judgment. It found
that the applicant already had sufficient information and failed to
show that her husband's financial situation had changed. Furthermore,
it invited the applicant to quantify her maintenance claims in order
to pursue her claim to vary the interim settlement in this regard.
- The
applicant wrote to the Federal Constitutional Court on
24 November 2004 again complaining about the length of
proceedings before the Hamburg-Wandsbek District Court. On
15 December 2004 the Registry of the Federal Constitutional
Court replied to the applicant that her constitutional complaint
would be inadmissible in view of the judgment of 23 November 2004.
Moreover, the applicant had failed to exhaust available domestic
remedies against the judgment of the Hamburg-Wandsbek District Court
of 23 November 2004.
- On
31 January 2005 the partial judgment of 23 November 2004
was served on the applicant's counsel.
- On
1 April 2005 the Hanseatic Court of Appeal rejected the
applicant's motion for legal aid for appellate proceedings.
- On
10 June 2005 the proceedings were terminated by a
settlement between the applicant and her former husband before the
Hanseatic Court of Appeal in the course of the other set of
proceedings regarding post-marital proprietary claims. The applicant
was awarded maintenance in the amount of EUR 782 and medical
insurance payments in the amount of EUR 159.39. The formulation of
the settlement was modified twice in 2006. These modifications did,
however, not concern the regulation of the applicant's maintenance
claims.
- On
23 February 2006 the Hanseatic Court of Appeal modified the
legal-aid order of 17 October 2002 upon the applicant's
appeal of 28 December 2003 so that her obligation to pay by
instalments was cancelled.
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
period to be taken into consideration began on 10 August 2001
and ended on 10 June 2005 with the conclusion of a friendly
settlement in the course of another set of proceedings. It thus
lasted 3 years and 10 months for one level 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
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions made before the Court
- In
the applicant's view, the case was not of a complex nature.
Furthermore, the taking of expert evidence was in her opinion
unnecessary according to domestic law. Moreover, the first hearing
was held more than seven months after the lodging of the claim. The
second hearing was held five months after the submission of the
supplementary expert opinion and ten months after the submission of
the initial expert opinion. She underlined that the district court
had failed to take any actions to further her claim to vary the
interim settlement on her maintenance claims since the partial
decision of 23 November 2004. In the applicant's view the
proceedings were terminated in March 2006, when the friendly
settlement of 10 June 2005 assumed its final wording. She
alleged that the delays in the proceedings had to be ascribed to the
Hamburg-Wandsbek District Court's inaction and its incorrect
application of the procedural law. The applicant emphasised that the
impugned proceedings concerned her maintenance claims and it
therefore had been of fundamental importance for her. In this
connection she referred to her poor state of health and the
aggravation of her long lasting mental illness during the
proceedings.
- The
Government maintained that the case had been of some complexity as
the taking of expert evidence had been necessary. They pointed out
that the applicant had not objected to the evidence order but
requested to amend it. The Government further argued that the
applicant's numerous appeals had contributed to the length of the
proceedings. However, the Government acknowledged that several delays
in the proceedings, which constituted approximately 19 months in
their opinion, could be attributed to the Hamburg-Wandsbek District
Court. Moreover, when assessing the importance of what was at stake
for the applicant it had to be considered that the applicant's former
husband had paid her EUR 450 maintenance per month throughout the
proceedings and that she had lived rent-free in the former
matrimonial home.
2. The Court's assessment
- 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 observes that the case was of some factual complexity due to
the nature of the evidence to be taken and assessed and that two sets
of proceedings were pending simultaneously before the domestic courts
concerning post-marital proprietary claims. As to the necessity of
the evidence order the Court recalls that, as a general rule, it is
not the Court's task 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 (Garcia
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
Having regard to the parties' submissions and all the material
submitted to the Court, it cannot be found that the evidence order
was arbitrary or otherwise not pertinent to the proceedings.
- As
to the conduct of the applicant, the Court observes that the
proceedings could not properly advance in May and June 2002 on
account of the applicant's hospitalisation which hindered her to
actively take part in the proceedings. Moreover, she unsuccessfully
alleged bias of the first instance court twice. Further, on
2 September 2002 her first counsel withdrew from
representing her. Subsequently, legal aid proceedings were pending
until 28 February 2003. Her new counsel did not submit his
power of attorney until 21 November 2002 and then had to
familiarise himself with the case-file. In August 2003 the
evidence order was extended in accordance with the applicant's motion
of June 2003. Furthermore, the applicant's mental illness and
her submissions to the domestic court cast doubt on her capacity to
litigate. In April and May 2004 this question had to be clarified by
the court with the assistance of the expert. Finally, the applicant
failed to quantify her maintenance claims after the partial judgment
of 23 November 2004. Thus, the approximately four and a
half months delay which occurred after service of that judgment on
the applicant's counsel on 31 January 2005 is attributable
to the applicant.
- As
to the conduct of the authorities, the Court observes that several
delays in the proceedings resulted from the repeated postponement of
the first hearing which had been requested by the defendant, the
difficulties in appointing an expert and the delays which occurred in
scheduling the second hearing. The Court also acknowledges that the
applicant's numerous motions and appeals made it difficult for the
Hamburg-Wandsbek District Court to conclude the proceedings
expeditiously. Nevertheless these delays are partly attributable to
the national courts which should have acted with expedience given the
interests at stake and the applicant's deteriorated health.
- In
the light of these factors and having regard to the overall duration
of three years and ten months in one level of jurisdiction, the Court
finds that the length of the proceedings failed to meet the
“reasonable time” requirement. There has accordingly been
a violation of Article 6 § 1 of the Convention.
II. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Further, the applicant complained that she had not had
an effective remedy at her disposal to complain about the length of
the proceedings in the Hamburg-Wandsbek District Court. She alleged a
violation of Article 13 of the Convention, which reads as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Government did not contest that argument. They submitted that the
legislative procedure to introduce an effective remedy within the
meaning of Article 13 of the Convention and in compliance with
the Court's judgment in the case of Sürmeli was in
progress but could not have been concluded yet.
-
The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
Court reiterates that Article 13 of the Convention guarantees the
availability at national level of a remedy to deal with the substance
of an “arguable complaint” under the Convention and to
grant appropriate relief (see Kudła v. Poland [GC],
no. 30210/96, § 157, ECHR 2000 XI). In the
present case, having regard to its conclusion with regard to the
excessive length of the proceedings (see paragraph 40 above), the
Court considers that the applicant had an arguable claim of a
violation of Article 6 § 1.
- The
Court reiterates that according to its recent case-law there is no
effective remedy under German law capable of affording redress for
the unreasonable length of civil proceedings. In particular, a
complaint with the Federal Constitutional Court is neither capable of
expediting pending proceedings nor of providing adequate redress for
breaches of the “reasonable time” requirement which have
already occurred (see Sürmeli v. Germany [GC], no.
75529/01, §§ 103-108, ECHR 2006-VII; Herbst v. Germany,
no. 20027/02, §§ 65-66, 11 January 2007).
- The
Court has further taken due note of the Government's submissions
concerning the legislative procedure to introduce in German written
law a new remedy in respect of inaction. The Court notes that the
legislative measure has been under way for a considerable time and
encourages the speedy enactment of a law introducing an effective
remedy in the German legal system, which would be capable of
affording redress for the unreasonable length of civil proceedings.
- Accordingly,
the applicant did not have an effective remedy within the meaning of
Article 13 of the Convention which could have expedited the
proceedings in the Hamburg-Wandsbek District Court or provided
adequate redress for delays that had already occurred.
- There
has therefore been a violation of Article 13 of the Convention.
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 claimed compensation for pecuniary and non-pecuniary
damages and the reimbursement of her costs and expenses.
A. Damages
- The applicant claimed EUR 10,586.96 in respect of
pecuniary and non-pecuniary damages.
- She submitted that she had incurred costs of EUR
586.96 for her legal representation in proceedings in 2003 which the
applicant's former husband had initiated to oppose the execution of
the interim settlement of 1995. She submitted that those proceedings
would not have been necessary if the Hamburg-Wandsbek District Court
had given judgment within a reasonable time.
- As to the non-pecuniary damages, the applicant argued
that the length of the proceedings put a particular burden on her
with respect to her pre-existing mental illness and its deterioration
during the proceedings. Therefore, she held EUR 10,000 to be
justified for non-pecuniary damages.
- The
Government contested the amount of non-pecuniary damages claimed.
They submitted that the proceedings were not of fundamental
importance for the applicant as she had had a bank balance of
EUR 57,706.55, received monthly maintenance payments of EUR 450
and lived rent-free in the former matrimonial home.
- As
regards the applicants' claim for pecuniary damages, the Court
recalls that it cannot speculate as to what the outcome of the
proceedings at issue might have been if the violation of Article 6
§ 1 of the Convention had not occurred (see, inter alia,
Schmautzer v. Austria, judgment of 23 October 1995,
Series A no. 328-A, p. 16, § 44; Wettstein
v. Switzerland, no. 33958/96, § 53, ECHR 2000-XII;
and Janssen v. Germany, no. 23959/94, § 56,
20 December 2001). It further notes that there is insufficient
proof of any causal connection between the excessive duration of the
proceedings as such and the pecuniary damage allegedly sustained by
the applicant in course of another set of proceedings. There are,
therefore, no grounds for an award under this head.
- As
to the non-pecuniary damage claimed, the Court finds that it has to
consider all the factors before it including the applicant's conduct
(see Gisela Müller v. Germany, no. 69584/01, § 93,
6 October 2005). With regard to the circumstances of this specific
case and ruling on an equitable basis, the Court awards the applicant
EUR 1,000 under that head.
B. Costs and expenses
- The applicant also claimed EUR 1,469.65 including
value-added tax for the costs and expenses incurred before the Court.
-
The Government contested the amount of these claims and maintained
that the applicant did not confine her submissions to the length of
the proceedings but also contested their outcome before the Court.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the fact that the costs claimed had been incurred solely with respect
to the complaints communicated by the Court, as the applicant's
counsel was merely involved in that later stage of the proceedings,
and to the Court's case-law, the Court considers it reasonable to
award the sum claimed in full.
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 remainder of the application
admissible unanimously;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
- Holds unanimously that there has been a
violation of Article 13 of the Convention;
- Holds unanimously
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts:
(i) EUR 1,000 (one thousand euros) plus
any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR 1,469.65 (one thousand four hundred sixty-nine euros
and sixty five cents) plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 9 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
