RUdiger GROMZIG v Germany - 13791/06 [2008] ECHR 1209 (7 October 2008)

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The European Court of Human Rights (Fifth Section), sitting on
7 October 2008 as a Chamber composed of:

Rait Maruste, President,
Karel Jungwiert,
Volodymyr Butkevych,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

The applicant, Mr Rüdiger Gromzig, is a German national who was born in 1952 and lives in Glinde.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is the heir of his parents, who owned several properties located on the territory of the former German Democratic Republic
(“the GDR”). In 1951 his parents left the GDR and their property was expropriated. In 1977 the applicant's mother received compensation for the loss of the properties under the Equalisation of Burdens Act (Lastenausgleichsgesetz – see “Relevant domestic law” below). In 1990 two of the properties were purchased from the State by the tenants.

In early 1992 the applicant sought legal advice from the law firm of P.A. and J.P. concerning the restitution of the property. As the lawyers did not inform him about the preclusive time-limit (Ausschlussfrist) for restitution claims, which expired on 31 December 1992, the Dessau and Jerichoer Land Offices for the Resolution of Outstanding Property Issues (Amt zur Regelung offener Vermögensfragen, “the Dessau Office/Jerichoer Land Office”) rejected his requests of 13 and 15 August 1994 for restitution of the property as he had failed to comply with the time-limit.

On 7 April 1995 the applicant brought proceedings against P.A. and J.P. before the Hamburg Regional Court claiming damages for their failure to inform him about the preclusive time-limit for his restitution claims.

On 22 November 1995 the Regional Court dismissed his action, finding that there had been no breach of the lawyers' duties.

On 9 July 1998 the Federal Court of Justice found that the lawyers had breached their duties. It quashed the judgment of the Court of Appeal and remitted the case to that court for fresh consideration.

On 18 September 1998 and on subsequent occasions the applicant extended his compensation claims. Inter alia he claimed 19.5% interest for loss of profit which he would have allegedly received should he have placed the money resulting from his restitution claims on a bank account.

On 4 November 1999 the Court of Appeal appointed the expert B.P. for the determination of the properties' market value.

On 1 March 2000 and on subsequent occasions the applicant unsuccessfully challenged several judges of the Court of Appeal for bias.

In early 2000 the applicant's lawyer M. requested the court to discharge him as the applicant's conduct made it impossible to continue representing him. The applicant commented four times on M.'s request before the Court of Appeal discharged M. on 18 May 2000.

On 18 January 2002 the court ordered the preparation of a psychiatric expert report on the applicant's capacity to be a party to an action.

On 30 April 2003 the Court of Appeal updated its decision of
1 October 1999 and again appointed expert B.P. to determine, inter alia, the market value of the properties.

On 23 September 2003 the applicant challenged the expert for bias.
On 5 November 2003 the Court of Appeal dismissed his objections as being unfounded.

On 12 May 2004 the Court of Appeal held a further oral hearing during which it heard evidence from, inter alia, the expert concerning the findings of her report. During the hearing the defendants submitted that the Dessau and Jerichoer Land Offices would have decided on the amounts of indemnification under the Indemnification Act (Entschädigungsgesetz – see “Relevant domestic law”) only after they had decided on the restitution of the properties under the Property Act. The Court of Appeal considered these submissions to be relevant and not belated and authorised both parties to make further submissions in this connection.

On 8 June 2004 the applicant attempted to reduce his interest claim but the defendants objected to the reduction.

On 9 June 2004 the defendants made further written submissions, which the applicant's lawyers received on 11 June 2004.

By a partial judgment (Grund- und Teilurteil) of 30 June 2004 the Court of Appeal ordered the defendants, inter alia, to pay the applicant approximately EUR 110,105 in respect of those properties which could have been returned to the applicant under the Property Act. In so doing, the court relied, among other elements, on information given by the Dessau and Jerichoer Land Offices and on B.P.'s expert report.

The court also held that the applicant had not been entitled to restitution of those properties in respect of which he had failed to prove that they had been acquired by third parties in bad faith (see “Relevant domestic law” below). For those properties he should merely have received payment of an indemnification under the Indemnification Act, less the amount of compensation that had been paid under the Equalisation of Burdens Act (Lastenausgleich). However, as the Court of Appeal still had to ascertain the notional date on which the authorities would have awarded the indemnification to the applicant, it could not yet establish the exact amount of damages payable by the defendants in respect of the properties subject to indemnification.

On 9 February 2005 the Court of Appeal held an oral hearing during which the defendants submitted written observations.

On 17 and 28 February 2005 the applicant unsuccessfully requested the court to reopen the hearing, alleging that he had had no opportunity to comment on the defendants' last submissions.

In its final judgment (Schlussurteil) of 9 March 2005 the Court of Appeal ordered the defendants to pay the applicant a further EUR 27,933 as compensation for the loss of indemnification under the Indemnification Act. It also fixed the total amount in dispute in the appellate proceedings at EUR 1,108,306, calculated on the basis of the value of all claims the applicant had asserted throughout the proceedings, and ordered the applicant to pay nine-tenths of the costs of the proceedings, as he had won the case only in respect of some EUR 124,000.

On 8 November 2005 the Court of Appeal dismissed the applicant's request to reconsider its decision as unfounded.

On 30 March 2005 the applicant requested the Federal Court of Justice to grant him leave to appeal on points of law.

On 14 July 2005 the Federal Court of Justice refused to grant him legal aid because his proposed appeal on points of law lacked any prospect of success. In so far as the case raised issues of fundamental importance (concerning in particular the question of deduction of the compensation paid under the equalisation legislation), the value of that claim fell below the required amount of EUR 20,000 provided for by section 26, point 8 of the Introductory Act to the Code of Civil Procedure (Gesetz betreffend die Einführung der ZPO – see “Relevant domestic law and practice” below). His remaining complaints did not raise issues of fundamental importance nor did they require a decision for the further development of the law within the meaning of section 543 § 2 of the Code of Civil Procedure
(see “Relevant domestic law” below).

On 8 August 2005 the applicant complained before the Federal Court of Justice, arguing that the Court of Appeal had violated his right to be heard.

On 19 September 2005 the Federal Court of Justice rejected the applicant's complaint, arguing that the applicant had received the defendants' submissions of 9 June 2004 on 11 June 2004 and that he could have replied to them prior to the partial judgment of 30 June 2004, but had failed to do so. Moreover, there was no reason for the Court of Appeal to reopen the hearing in response to the applicant's requests of 17 and 28 February 2005, as the defendants' submissions of 9 February 2005 merely concerned an issue (the notional date of decision on the applicant's (hypothetical) indemnification requests) which had already been discussed at length between the parties and on which the applicant, represented by a lawyer, had commented during the hearing without requesting the court to grant him further time to reply to the defendants' observations.

On 17 December 2003 the Federal Constitutional Court refused to admit the applicant's first constitutional complaint in which he complained about the length of the proceedings before the Hamburg Court of Appeal.
The court found that, despite some shortcomings in the conduct of the proceedings, their duration could still considered to be acceptable given the extraordinary legal and factual complexity of the case (the Regional Court had to deal with issues which were normally examined by administrative courts and which dated back to the time of the former GDR) and considering the applicant's conduct (numerous challenges for bias, changes of lawyer and modification of his claims). It assumed that the Court of Appeal would complete its consideration of the case in the first half of 2004.

On 27 July 2004 the Federal Constitutional Court refused to admit the applicant's second constitutional complaint as there was no appearance of a violation of the applicant's fundamental rights.

On 8 August 2005 the applicant lodged his third constitutional complaint, which the Federal Constitutional Court refused to admit on
8 November 2005, stating that there was no appearance of a violation of the applicant's fundamental rights.

On 2 May 2006 the Hamburg Regional Court fixed the defendants' costs in the proceedings to be paid by the applicant.

On 16 May 2006 the applicant requested the Hamburg Regional Court to fix the costs in the proceedings to be paid by the defendants.

On 26 June 2006 the Hamburg Court of Appeal rejected the applicant's complaint against the Regional Court's decision of 2 May 2006.

On 4 July 2006 the Court of Appeal served the decision on the applicant's lawyers.

On 22 January 2007 the Federal Constitutional Court refused to admit the applicant's constitutional complaint concerning the Court of Appeal's alleged refusal to send him a copy of the decision of 26 June 2006 and the Regional Court's refusal to fix his costs in the proceedings.

On 1 February 2007 the Regional Court fixed the costs in the proceedings to be paid by the defendants. The applicant mounted several unsuccessful challenges to that decision.

On 28 February 2007 the Hamburg Regional Court sent a further copy of the Court of Appeal decision dated 26 June 2006 to the applicant's lawyer, who received it on 5 March 2007.

On 2 June 2007 the applicant lodged a complaint alleging a breach of his right to be heard.

On 10 October 2007 the Hamburg Court of Appeal declared the applicant's complaint inadmissible as he had failed to comply with the two week time-limit for lodging it.

On 18 December 2007 the Federal Constitutional Court refused to admit the applicant's constitutional complaint concerning all the decisions given by the courts since 2 May 2006, without giving any reasons.

On 8 January 2008 the Hamburg Court of Appeal ordered the applicant to pay the court fees (75 EUR) for his complaints against the fixing of the costs in the proceedings.

On 13 January 2008 the applicant complained about the order, though on 16 January 2008 the Court of Appeal rejected his complaint.

On 16 June 2008 the Federal Constitutional Court refused to admit the applicant's constitutional complaint as being inadmissible.

In April 2007 the defendants proceeded with the enforcement of the Hamburg Regional Court's cost order of 2 May 2006.

On 8 May 2007, following the applicant's request, the Reinbek District Court provisionally ordered to stay the enforcement proceedings without giving any reasons.

On 15 November 2007 the Lübeck Regional Court quashed the District Court's judgment as the applicant's personal situation did not warrant the stay of the enforcement proceedings according to section 765a of the Code of Civil Procedure (see “Relevant domestic law” below).

On 6 June 2007 the Hamburg Regional Court refused to grant the applicant legal aid as his proposed action to stay the enforcement proceedings (Vollstreckungsabwehrklage – see “Relevant domestic law” below) lacked reasonable prospects of success.

On 28 March 2008 the Hamburg Court of Appeal mainly rejected the applicant's appeal.

On 4 June 2008 the Federal Constitutional Court refused to admit his constitutional complaint for being inadmissible.

1. Restitution and indemnification of property expropriated by the GDR authorities

The Resolution of Outstanding Property Issues Act/Property Act
(Gesetz über die Regelung offener Vermögensfragen / Vermögensgesetz) provides that persons whose property was unlawfully expropriated during the time of the GDR are in principle entitled to restitution, unless the property was purchased in good faith by a third party. In such cases the former owners have a right to financial indemnification under the Act governing indemnification pursuant to the Resolution of Outstanding Property Issues / Indemnification Act (Entschädigungsgesetz); the amount of indemnification does not reflect the property's market value.

According to section 8 of the Indemnification Act, any amounts received by way of compensation under the Equalisation of Burdens (War Losses) Act (Lastenausgleichsgesetz) which dealt, inter alia, with reparation for damage or loss incurred as a result of expulsions dating from the post-war period in the Soviet-occupied zone of Germany, are to be deducted from the amount of indemnification.

The Property Act further provides that after 31 December 1992 restitution claims in respect of real property can no longer be filed.

2. Provisions governing the admissibility of requests for leave to appeal on points of law

On 1 January 2002 the amendments to the Code of Civil Procedure entered into force. Until then, an appeal on points of law had been admissible if the value of the claim exceeded 60,000 DEM. If the value of the claim was lower the Court of Appeal could grant leave to appeal on points of law, inter alia, if the case was of fundamental importance.

As of 1 January 2002 section 543 § 2 of the Code of Civil Procedure provides that leave to appeal on points of law is restricted to (1) cases of fundamental importance, (2) if it is required in order to further develop the law or (3) to secure the consistency of the case-law.

The transitional provisions of section 26, point 8 of the Introductory Act to the Code of Civil Procedure (Gesetz, betreffend die Einführung der ZPO) as in force at the material time provided that until 31 December 2006 appeals on points of law were inadmissible if they did not exceed EUR 20,000 in value (irrespective of the requirements laid down in section 543 § 2 of the Code of Civil Procedure). If parts of the matter in dispute were severable (abtrennbar), the appellate court (Revisionsgericht) could grant leave to appeal on points of law only in respect of those parts which fulfilled the requirements established in section 543 § 2 of the Code of Civil Procedure and the value of which exceeded EUR 20,000.

Pursuant to section 765a of the Code of Civil Procedure enforcement proceedings may be (provisionally) stayed in cases of hardship.

According to section 767 of the Code of Civil Proceedings an action to stay enforcement proceedings (Vollstreckungsabwehrklage) may be lodged, if the debtor asserts admissible objections against the claim.

The applicant complains under Article 6 of the Convention about the excessive length of the main proceedings, of the proceedings relating to the fixing of the costs in the proceedings and relating to the court fees.

Furthermore, he complains of section 26, point 8 of the Introductory Act to the Code of Civil Procedure, which limited the right of appeal on points of law in matters with a value not exceeding EUR 20,000. In particular, he submits that the delays in the proceedings before the Court of Appeal led to the denial of his right to appeal on points of law, arguing that if the Court of Appeal had terminated the proceedings earlier, his case would not have been covered by the reform of the Code of Civil Procedure and he would have been granted leave to appeal on points of law.

The applicant also complains that the Court of Appeal misjudged the facts, wrongly applied the pertinent provisions of the German law and misinterpreted the evidence. He alleges that the court erroneously placed the burden of proof on him concerning the question whether the tenants had acquired the properties in bad faith and complains about the deduction of compensation received under the equalisation legislation.

He further complains that the Court of Appeal violated his right to be heard because it ignored his submissions and offers of proof and did not hear evidence from him prior to M.'s discharge, because he had no opportunity to comment on the defendants' comments submitted on 9 June 2004, because the court rejected his requests of 17 and 28 February 2005 to reopen the hearing of his case and because it failed to consider that the defendants' misconduct had prevented him from submitting the relevant documents concerning his father's real estate accounts.

He further alleges that the Court of Appeal's judges and the expert B.P. were biased, that the Court of Appeal erroneously admitted the late submissions of the defendants during the hearing of 12 May 2004, that it failed to inform him about the erroneous amount of interest he had claimed and that he was denied the opportunity to reduce the claim, and that in its decision of 30 April 2003 the Court of Appeal erroneously assumed that he had to pay the advance on the expert's fees.

In addition, the applicant challenges the Federal Court of Justice's findings as to the fundamental importance of his case and the separation of the value of the deducted compensation received under the equalisation legislation from the value of the remaining claims, which made it impossible for him to reach the amount of EUR 20,000 required in order to be granted leave to appeal on points of law.

The applicant complains that the Federal Constitutional Court acted in breach of its duty to establish the facts of the case (Amtsermittlungspflicht) and that its judges were biased.

He further complains under Article 6 about the incorrect fixing of the court fees, the denial of access to a court on account of the Court of Appeal's refusal to send him a copy of its decision of 26 June 2006, the fact that German law did not make it possible to challenge the Court of Appeal's determination of the amount in dispute before the Federal Court of Justice and that he had to bear the court fees for his appeals against the fixing of the costs in the main proceedings.

Finally, he complains about the outcome of the enforcement proceedings and the denial of legal aid for his proposed action to stay the latter.

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Court finds that it cannot, on the basis of the case file, determine the admissibility of the complaint. It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

It follows that these complaints must be rejected under Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.

Decides to adjourn the examination of the applicant's complaints concerning the length of the proceedings in respect of the main proceedings;

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You are here: BAILII >> Databases >> European Court of Human Rights >> RUdiger GROMZIG v Germany - 13791/06 [2008] ECHR 1209 (7 October 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1209.html Cite as: [2008] ECHR 1209