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 TRÄXLER v. GERMANY
(Application
no. 32936/09)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Träxler v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
committee composed of:
Mark Villiger, President,
Renate
Jaeger,
Isabelle Berro-Lefèvre, judges,
and
Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32936/09) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Ms
Petra Träxler (“the applicant”), on 10 June 2009.
- The
applicant was represented by Mr U. Breitmeier, a lawyer practising in
Rossdorf. The German Government (“the Government”) were
represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin,
Federal Ministry of Justice.
In
accordance with Protocol 14, the application is assigned to a
Committee of three Judges.
- The
applicant and the Government filed further written observations (Rule
59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Rossdorf.
A. First stage of the proceedings
- On
4 July 1996, together with originally three and later on six of her
siblings, the applicant filed an action by stages (Stufenklage)
against the wife and heiress of their late father, seeking
information regarding the estate, an affidavit as to the completeness
of the information provided and, at the last stage, payment of their
statutory shares (Pflichtteil).
- On
19 February 1997, following an oral hearing on 18 December 1996 and
further submissions by the plaintiffs, the Darmstadt Regional Court
decided to consult the relevant files from the probate court.
- The
second oral hearing, scheduled for 17 December 1997, was rescheduled,
because one of the judges had fallen ill; it took place on
10 February 1998. At this hearing the defendant was ordered to
submit the extensive private expert opinion she had previously
referred to. On 15 April 1998 the court proposed a friendly
settlement which the parties did not accept. In June and July 1998
three additional plaintiffs joined the action.
- A
third oral hearing, scheduled for 3 March 1999, was cancelled after
the parties had consented to written proceedings. The date of
delivery of a decision was set for 3 March 1999; it was subsequently
postponed to 14 April 1999, on which date the Regional Court
issued an informative decision (Hinweisbeschluss). On 30 June
1999 the court handed down a partial judgment, ordering the defendant
to provide information on the estate.
- On
23 August 1999 the defendant appealed. The plaintiffs had to retain
new counsel for the appeal proceedings. The time-limit for reasoning
the appeal was extended once as was the time-limit for the plaintiffs
for the submission of an answer to the appeal. In May 2001 the
applicant retained again different counsel. At a hearing on 19 June
2001 three plaintiffs entered into a friendly settlement with the
defendant. At the second hearing on 13 November 2001 the defendant
withdrew the appeal.
B. Second stage of the main proceedings
- On
14 November 2001 the applicant’s counsel applied to the
Regional Court to proceed with the second and third stage of the
action. On 19 December 2001 the reasoning in this regard was
forwarded to the defendant’s counsel who, after having been
granted two extensions of the time-limit, submitted the answer in
April 2002. On 14 March 2002 another plaintiff joined the second
stage of the action. On 24 July 2002, after the plaintiffs had
submitted further observations within an extended time-limit, the
Regional Court requested additional information. On 21 August 2002
the applicant and another plaintiff extended their claim. On 16
September 2002 the fourth plaintiff joined the second stage of the
action. On 2 December 2002 the plaintiffs submitted further
observations.
- On
18 December 2002 an oral hearing was scheduled for 26 March 2003. On
24 March 2003 the Regional Court cancelled the hearing and announced
a further informative decision which was issued on 10 June 2003; the
time-limit for additional observations was 31 July 2003. After an
extension of this time-limit for the defendant the parties submitted
their observations on 10 July 2003 and 28 August 2003 respectively.
- On
1 September 2004, following an oral hearing on 17 March 2004, the
Regional Court requested further information by 30 September 2004. On
24 November 2004 the Regional Court ordered three expert opinions. On
29 December 2004 the applicant and two other plaintiffs applied
for that evidence order to be amended. On 25 February 2005 new
counsel for the defendant intervened, also applied for an amendment
of the evidence order and declared a partial confession. On 20 May
2005 the Regional Court handed down a partial judgment by confession
(Teilanerkenntnisurteil).
- On
27 May 2005 the court files were sent to the first expert who
submitted his report on 7 September 2005. On 28 October 2005 the
applicant and two other plaintiffs submitted a list of questions for
the expert. On 30 January 2006 the Regional Court advised the
plaintiffs that since the list of questions had been prepared by the
plaintiffs themselves despite mandatory representation, there were
doubts as to whether they could be used. On the same day the court
also forwarded the files to the second expert. On 30 January 2006 the
applicant and two other plaintiffs again submitted a list of
questions, this time prepared by counsel. On 31 May 2006 the Regional
Court ordered the defendant to provide the second expert with missing
documents. On 26 October 2006 the second expert submitted his report
to which the defendant objected on 29 November 2006. On 14 December
2006 the court forwarded the files to the third expert. On 10 January
2007 the applicant and two other plaintiffs personally submitted
observations regarding the second expert opinion. On 20 July 2007 the
third expert submitted his opinion. On 28 August 2007 and 22 October
2007 the applicant’s counsel requested to have the experts
heard. On 14 November 2007 the Regional Court advised the parties
that it preferred to order written supplements from the experts. It
further reiterated its doubts regarding submissions by the plaintiffs
themselves instead of by counsel.
- On
11 December 2007 the court was notified that the applicant had
retained new counsel. In January 2008 the applicant’s new
counsel inspected the files. On 11 February 2008 the first expert was
asked to supplement his report. On 26 March 2008 he submitted the
supplement.
C. Legal aid proceedings
- On
14 November 2001 the applicant and another plaintiff, represented by
the same lawyer, applied for legal aid.
- On
24 November 2004 the Regional Court granted legal aid for the third
stage of the action. On 20 May 2005 the court of its own motion
partially amended the legal aid decision. On 8 June 2005 the
applicant complained about this amendment which was thereupon again
amended on 29 June 2005.
- On
25 February 2008 the applicant and one other plaintiff, who both had
retained the same new lawyer at the end of 2007, requested to have
that lawyer appointed as their legal aid lawyer. On 25 April 2008
they were advised that certain conditions had to be met to appoint
their new representative. On 25 August 2009 their request was
rejected. On 4 September 2009 this decision was appealed. On 2
November 2009 the Court of Appeal requested further documents from
the applicant who submitted them personally on 5 December 2009. On 11
January 2010 the Court of Appeal quashed the decision of 25 August
2009 and ordered the Regional Court to appoint legal aid counsel for
the applicant and the other plaintiff, however, not the lawyer
retained by them. On 25 January 2010 the applicant and the other
plaintiff were requested to name a new lawyer within three weeks. On
4 February 2010 the applicant requested an extension of this
time-limit. On 19 April 2010 a new lawyer indicated that he would be
willing to represent the applicant.
D. Further proceedings initiated by the applicant
- On
6 May 1999 the applicant submitted her first disciplinary complaint
in view of the length of the proceedings which she reiterated on 20
February 2006.
- On
7 March 2002 the applicant and another plaintiff requested the court
to fix a penalty payment because the defendant had allegedly not
complied with the judgment of 30 June 1999.
- On
15 October 2008 the applicant lodged a motion for bias against the
judge rapporteur who on 20 October 2008 submitted her official
statement. On 13 January 2009 the motion was dismissed. On 30 January
2009 the applicant objected. On 14 May 2009 the objection was
dismissed.
- On
18 August 2008 the Public Prosecutor’s Office requested the
files in view of criminal charges pressed by the applicant. The files
were returned on 1 September 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government did not contest this argument but emphasized that the
subject matter of the proceedings with several plaintiffs and
extensions of the plaintiffs’ claim was factually and legally
very complex. They also submitted that the applicant, in particular
her frequent change of counsel as well as the observations submitted
by her personally despite mandatory representation by counsel
contributed considerably to the delay.
- The
period to be taken into consideration began on 4 July 1996 with the
lodging of the action and has not yet ended. It has thus lasted
thirteen years, eleven months and two weeks at two levels of
jurisdiction.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court, while also
taking into account the complexity of the case as well as the
substantial delays attributable to the applicant, considers that in
the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. 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. 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.”
- The
Government did not contest that argument but submitted that work on a
new draft bill in this regard was underway.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). In the present case, having regard to its conclusion with
regard to the excessive length of the proceedings, 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
(see Sürmeli v. Germany [GC], no. 75529/01,
§§ 103-108, ECHR 2006-VII).
- Accordingly,
the applicant did not have at her disposal an effective remedy within
the meaning of Article 13 of the Convention.
- 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.”
A. Damage
- The
applicant claimed 469,832.00 euros (EUR) in respect of pecuniary
damage, comprising her alleged statutory share plus default interest.
She further claimed EUR 56,000.00 in non-pecuniary damage.
- The
Government contested the claim for pecuniary damage and left the
issue of non-pecuniary damage to the discretion of the Court.
- The
Court observes that the pecuniary damage alleged by the applicant was
not caused by the length of the proceedings before the domestic
courts and therefore does not discern any causal link between the
violation found and the pecuniary damage alleged. Accordingly, it
considers that no award can be made under this head.
- As
to non-pecuniary damage the Court considers that the applicant must
have sustained non-pecuniary damage as a result of the excessive
length of the proceedings. Ruling on an equitable basis and having
regard to the nature of the Convention violations it has found, it
awards her EUR 10,000.00 under that head.
B. Costs and expenses
- The
applicant, submitting documentary evidence, claimed EUR 5,273.06
for costs and expenses incurred before the domestic courts and EUR
5,842.90 for costs and expenses incurred before this Court. The
latter sum includes EUR 916.30 for an expert opinion on the prospects
of success of an application to this Court and lawyer’s fees of
EUR 4,926.60. The lawyer’s fees are based on an agreed upon
hourly rate of EUR 115.00 (plus tax) and 36 hours of work,
including 4 hours for the preparation of the expert opinion.
- The
Government contested these claims and maintained that there was no
causal connection between the costs and expenses claimed for the
proceedings before the domestic courts and the duration of the
proceedings.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers that the applicant has not established that the costs and
expenses claimed for the proceedings before the domestic courts were
incurred in order to seek prevention or rectification of the specific
violation caused by the excessive length of the proceedings. However,
seeing that in length of proceedings cases the protracted examination
of a case beyond a “reasonable time” involves an increase
in the applicants’ costs (see, among other authorities, Sürmeli
v. Germany [GC], no. 75529/01,
§ 148, ECHR 2006 VII), it finds it reasonable to award
EUR 500 under this head. The Court further considers it
reasonable to award the sum of EUR 4,379.20 covering lawyer’s
fees for the proceedings before the Court. However, the Court,
considering them not necessarily incurred, rejects the claim
regarding the expert opinion as well as the claim for EUR 547.40
invoiced for counsel’s preparatory work for that expert
opinion.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation Article 13
of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
(i) 10,000
EUR (ten thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) 4,879.20
EUR (four thousand eight hundred seventy-nine euros and twenty
cents), plus any tax that may be chargeable, for costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
